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County Government Ordinances for Sex Shops
Ordinance No. ______
AN ORDINANCE PRESCRIBING DEFINITIONS OF SEXUALLY
ORIENTED BUSINESS; PROVIDING FOR LICENSING AND
REGULATION OF SUCH BUSINESSES AND THEIR EMPLOYEES: PROVIDING FOR ADDITIONAL MISCELLANEOUS
REGULATIONS OF SEXUALLY-ORIENTED BUSINESSES
Section
- Preamble
1. Purpose and Findings
2. Definitions
3. Classifications
4. License Required
5. Issuance of License
6. Fees
7. Inspection
8. Expiration of License
9. Suspension
10. Revocation
11. Hearing; License Denial, Suspension, Revocation; Appeal
12. Transfer of License
13. Hours of Operation
14. Regulations Pertaining to Exhibition of Sexually Explicit Films on Premises
15. Loitering and Exterior Lighting and Monitoring Requirements
16. Penalties and Enforcement
17. Applicability of Ordinance to Existing Businesses
18. Prohibited Activities
19. Scienter Required to Prove Violation or Business Licensee Liability
20 Failure of County to Meet Time Frame Not to Risk Applicant/Licensee Rights
21. Location of Sexually-oriented Businesses
22. Severability
23. Conflicting Code Provisions Repealed
WHEREAS, sexually-oriented businesses require special supervision from the public safety agencies of the County in order to protect and preserve the health, safety, morals and welfare of the patrons of such businesses as well as the citizens of the County; and
WHEREAS, the Fiscal Court finds that sexually-oriented businesses, as a category of establishments, are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the County which demands reasonable regulation of sexually-oriented businesses in order to protect the health and well-being of the citizens; and
WHEREAS, licensing is a legitimate and reasonable means of accountability to ensure that operators of sexually-oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation; and
WHEREAS, there is convincing documented evidence that sexually-oriented businesses have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, and are often associated with crime and the downgrading of property values; and
WHEREAS, the Fiscal Court desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight; and
WHEREAS, it is not the intent of the Fiscal Court to condone or legitimize the distribution of obscene material, and the Fiscal Court recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages state law enforcement officials to enforce criminal obscenity statutes against any such illegal activities in the County; and
WHEREAS, the County recognizes its constitutional duty to interpret, construe, and amend its laws and ordinances to comply with constitutional requirements as they are announced; and
WHEREAS, with the passage of any ordinance, the County and the Fiscal Court accept as binding the applicability of general principles of criminal and civil law and procedure and the rights and obligations under the United States and Kentucky Constitutions, Kentucky Code, and the Kentucky Rules of Civil and Criminal Procedure; and
WHEREAS, it is not the intent of this Ordinance to suppress any speech activities protected by the U.S. Constitution or the Kentucky Constitution, but to enact an ordinance to further the content-neutral governmental interests of the County, to wit, the controlling of secondary effects of sexually-oriented businesses.
NOW, THEREFORE, BE IT ORDAINED by the Fiscal Court of Bell County, Kentucky, as follows:
Section 1. Purpose and findings.
(a) Purpose. It is the purpose of this Ordinance to regulate sexually-oriented businesses in order to promote the health, safety, and general welfare of the citizens of the County, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually-oriented businesses within the County. The provisions of this Ordinance 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 Ordinance 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 Ordinance to condone or legitimize the distribution of obscene material.
(b) Findings. Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to the Fiscal Court, and on findings, interpretations, and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4, L.L.C., 2004 U.S. LEXIS 4026 (June 7, 2004); Pap’s A.M. v. City of Erie, 529 U.S. 277 (2000); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990); California v. LaRue, 409 U.S. 109 (1972); as well as in the cases of:
DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Brandywine, Inc. v. City of Richmond, 359 F.3d 830 (6th Cir. 2004); Currence v. City of Cincinnati, 2002 U.S. App. LEXIS 1258; Broadway Books v. Roberts, 642 F.Supp. 486 (E.D.Tenn. 1986); Bright Lights, Inc. v. City of Newport, 830 F.Supp. 378 (E.D.Ky. 1993); Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Déjà vu v. Metro Government, 1999 U.S. App. LEXIS 535 (6th Cir. 1999); Bamon Corp. v. City of Dayton, 7923 F.2d 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994); O’Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir. 1990); Déjà vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); World Wide Video of Spokane, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Threesome Entertainment v. Strittmather, 4 F.Supp.2d 710 (N.D. Ohio 1998); Bigg Wolf Discount Video Sales, Inc. v. Montgomery County, 256 F.Supp.2d 385 (D.Md. 2003); Kentucky Restaurant Concepts, Inc. v. City of Louisville and Jefferson County, 209 F.Supp.2d 672 (W.D.Ky. 2002); Restaurant Ventures v. Lexington-Fayette Urban County Gov’t, 60 S.W.3d 572 (Ct.App.Ky. 2001); Mr. B’s Bar & Lounge, Inc. v. Louisville, 630 S.W.2d 564 (Ct.App.Ky. 1981);
and reports of secondary effects occurring in and around sexually-oriented businesses, including, but not limited to, Chattanooga, Tennessee – 1999-2003; Phoenix, Arizona – 1979; Minneapolis, Minnesota-1980; Houston, Texas – 1997; Indianapolis, Indiana – 1984; Amarillo, Texas – 1977; Garden Grove, California – 1991; Los Angeles, California – 1977; Whittier, California – 1978; Austin, Texas – 1986; Seattle, Washington – 1989; Oklahoma City, Oklahoma – 1986; Centralia, Washington – 2003; Cleveland, Ohio – 1977; Dallas, Texas – 1997; Newport News, Virginia – 1996; New York Times Square study – 1994; Phoenix, Arizona – 1995-98; and also on findings of physical abuse from the paper entitled “Stripclubs According to Strippers: Exposing Workplace Sexual Violence,” by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota, and from “Sexually-oriented Businesses: An Insider’s View,” by David Sherman, presented to the Michigan House Committee on Ethics and Constitutional Law, Jan. 12, 2000, and the Report of the Attorney General’s Working Group On The Regulation Of Sexually-oriented Businesses, (June 6, 1989, State of Minnesota), the Fiscal Court 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 property values, urban blight, pornographic litter, and sexual assault and exploitation.
(2) Sexual acts, including masturbation, oral and anal sex, sometimes occur at unregulated sexually-oriented businesses, especially those which provide private or semi-private booths, rooms, or cubicles for viewing film, videos, or live sexually explicit shows, which acts constitute a public nuisance and pose a risk to public health through the spread of sexually transmitted diseases.
(3) 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 certain uses, such as other sexually-oriented businesses, to minimize the secondary effects associated with such uses and to prevent a concentration of sexually-oriented businesses and such uses.
(4) Each of the foregoing negative secondary effects constitutes a harm which the County has a substantial government interest in preventing and/or abating.
Section 2. Definitions.
For purposes of this Ordinance, the words and phrases defined in the sections hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context.
“Adult Bookstore / Adult Video Store” means a commercial establishment which has significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or maintains a substantial section of its sales or display space to the sale or rental, for any form of consideration, of any one or more of the following:
Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, slides, or other visual representations which are characterized by their emphasis upon the exhibition or description of “specified sexual activities” or “specified anatomical areas.”
The term “Adult Bookstore / Adult Video Store” shall also include a commercial establishment which regularly maintains one or more “Adult Arcades.” “Adult Arcade” 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 distinguished or characterized by their emphasis upon matter exhibiting or describing “specified sexual activities” or “specified anatomical areas.”
“Adult Cabaret” means a nightclub, bar, juice bar, restaurant, bottle club, or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features persons who appear “semi-nude”.
“Adult Motel” means a motel, hotel, or similar commercial establishment which:
(a) offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, other photographic reproductions, or live performances which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”; and which advertises the availability of such material by means of a sign visible from the public right-of-way, or by means of any on or off-premises advertising, including but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television; or
(b) offers a sleeping room for rent for a period of time that is less than 10 hours; or
(c) allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours
“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 exhibition of “specified sexual activities” or “specified anatomical areas” are regularly featured and shown for any form of consideration. “Adult Motion Picture Theater” shall also include an “Adult movie house.” “Adult movie house” means any movie theater which on a regular, continuing basis shows films rated “X” by any national or international motion picture rating association, or any movie theater which on a regular, continuing basis shows films characterized by an emphasis upon the exhibition of “specified sexual activities” or “specified anatomical areas.”
“Distinguished or Characterized by an Emphasis Upon” means the dominant or principal theme of the object described by such phrase. For instance, when the phrase refers to films “which are distinguished or characterized by an emphasis upon the exhibition or description of Specified Sexual Activities or Specified Anatomical areas,” the films so described are those whose dominant or principal character and theme are the exhibition or description “specified anatomical areas” or “specified sexual activities.”
“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, whether or not the person is denominated an employee, independent contractor, agent, 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” shall mean and include any of the following:
(a) The opening or commencement of any sexually-oriented business as a new business;
(b) The conversion of an existing business, whether or not a sexually-oriented business, to any sexually-oriented business; or
(c) The addition of any sexually-oriented business to any other existing sexually-oriented business.
“Hearing Officer” shall mean the Judge-Executive of Bell County or a designee of the Judge-Executive.
“Influential Interest” means any of the following: (1) the actual power, directly or indirectly, to control the operation, management or policies of a business or entity (2) ownership of a financial interest of twenty percent (20%) 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, etc.) in a legal entity which operates the sexually-oriented business.
“Licensee” shall mean 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 case of an “employee,” it shall mean the person in whose name the sexually-oriented business employee license has been issued.
“Nudity or a State of Nudity” means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage 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.
“Operate or Cause to Operate” shall mean to cause to function or to put or keep in a state of doing business. “Operator” means any persons on the premises of a sexually-oriented business who is authorized to exercise overall operational control of the business or who causes to function or who puts or keeps in operation the business. A person may be found to be operating or causing to be operated a sexually-oriented business whether or not that person is an owner, part owner, or licensee of the business.
“Person” shall mean individual, proprietorship, partnership, corporation, association, or other legal entity.
“Regularly Features, Regularly Maintains, or Regularly Shown” means a consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered or held out to the public as a part of the ongoing business carried on within the premises.
“Semi-Nude or State of Semi-Nudity” shall mean a state of dress in which opaque clothing covers no more than the genitals, anus, anal cleft or cleavage, pubic area, vulva, and nipple and areola of the female breast, as well as portions of the body covered by supporting straps or devices. This definition shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided that the areola and nipple are not exposed in whole or in part.
“Semi-Nude Model Studio” means any place where a person, who regularly appears in a state of semi-nudity, is provided for money for any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.
This definition does not apply to any person appearing in a state of semi-nudity or semi-nudity, if said person did so in a modeling class operated:
(a) by a college, junior college, or university supported entirely or partly by taxation;
(b) by a private college or university which maintains and operates educational programs in which credits are transferable to college, junior college, or university supported entirely or partly by taxation; or;
(c) in a structure:
(1) 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
(2) 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 (3) dimensional object designed or marketed for stimulation of the male or female human genital organ or anus or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos, vibrators, and penis pumps, and shall also include other devices with non-sex related utility, such as leather whips, straps, and ligatures when said devices are marketed in a context suggesting sexual or sadomasochistic purposes. 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. Nothing in this definition shall be construed to include any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services.
“Sexual Encounter Center” shall mean a business or commercial enterprise that, as one of its principal business purposes, purports to offer for any form of consideration:
(a) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(b) physical contact between male and female persons and/or persons of the same sex when one or more of the persons is semi-nude.
“Sexually-oriented Entertainment Activity” means the sale, rental, or exhibition for any form of consideration, of books, films, video cassettes, magazines, periodicals, or live performances which are characterized by an emphasis on the exposure or display of specific sexual activity.
“Specified Anatomical Areas” means and includes:
(a) 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
(b) human male genitals in a discernibly turgid state, even if completely and opaquely covered.
“Specified Criminal Activity” means any of the following offenses:
(a) K.R.S. §§510.040, 510.050, or 510.060 (rape in the first, second, or third degree); K.R.S. §§510.070, 510.080, or 510.090 (sodomy in the first, second, or third degree); K.R.S. §§510.110, 510.120, or 510.130 (sexual abuse in the first, second, or third degree); K.R.S. §§510.140 (sexual misconduct); §510.150 (indecent exposure); K.R.S. §§517.050 (falsifying business records); K.R.S. §§5129.020, 529.030, 529.040, or 529.050 (prostitution, promoting prostitution in the first, second, or third degree); K.R.S. §529.070, (permitting prostitution); K.R.S. §§531.020, 531.030, 531.040 (distributing obscene matter, distributing obscene matter to minors, using minors to distribute obscene matter); K.R.S. §§218A.140, et seq. (offenses relating to controlled substances); any offense listed in K.R.S. §§531.300 through §531.370 (sexual exploitation of minors offenses); engaging in organized crime (K.R.S. §506.120) relating to a sexually-oriented business; criminal attempt, conspiracy or solicitation to commit any of the foregoing offenses or offenses in other jurisdictions that, if the acts would have constituted any of the foregoing offenses if the acts had been committed in Kentucky; for which:
(1) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
(2) less than five years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a felony offense; or
(3) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period.
(b) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
“Specified Sexual Activity” means any of the following:
(a) sex acts, normal or perverted, including intercourse, oral copulation, masturbation or sodomy; or
(b) excretory functions as a part of or in connection with any of the activities described in (a) above.
“Transfer of Ownership or Control” of a sexually-oriented business shall mean any of the following:
(a) The sale, lease, or sublease of the business;
(b) The transfer of securities which constitute an influential interest in the business, whether by sale, exchange, or similar means; or
(c) 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” shall mean the room, booth, or area where a patron of sexually-oriented business would ordinarily be positioned while watching a film, videocassette, or other video reproduction.
Section 3. Classification.
Sexually-oriented businesses shall be classified as follows:
(1) Adult bookstore / adult video store;
(2) Adult cabaret;
(3) Adult motel;
(4) Adult motion picture theater;
(5) Sexual device shop;
(6) Semi-nude model studio;
(7) Sexual encounter center.
Section 4. License required.
(a) It shall be unlawful for any person to operate a sexually-oriented business in Bell County without a valid sexually-oriented business license.
(b) It shall be unlawful for any person to be an “employee,” as defined in this Ordinance, of a sexually-oriented business in Bell County without a valid sexually-oriented business employee license.
(c) An applicant for a sexually-oriented business license or a sexually-oriented business employee license shall file in person at the office of the County Clerk a completed application made on a form provided by the County Clerk. The application shall be signed as required by subsection (e) herein and shall be notarized. An application shall be considered complete when it contains, for each person required to sign the application, the information required in Paragraphs 1 through 6 as follows:
(1) The applicant’s full true name and any other names used by the applicant in the preceding five (5) years.
(2) Current business address or another mailing address of the applicant.
(3) Written proof of age, in the form of a copy of a birth certificate and a picture identification document issued by a governmental agency.
(4) If the application is for a sexually-oriented business license, the business name, location, agent for service of process if required by Kentucky law, mailing address and phone number of the sexually-oriented business.
(5) A statement of whether the applicant has been convicted or has pled guilty or nolo contendere to a specified criminal activity as defined in this Ordinance, and if so, the 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.
(6) A statement of whether the applicant, or any business in which the applicant has had an influential interest, has, in the previous five (5) years:
(i) had a license or permit revoked under this ordinance or under a similar sexually-oriented business/adult entertainment ordinance in another jurisdiction; or
(ii) been declared by a court of law to be a nuisance; or
(iii) been subject to an order of closure or padlocking.
The information provide pursuant to Paragraphs 1 through 6 of this subsection shall be supplemented in writing by certified mail, return receipt requested, to the County Clerk within ten (10) working days of a change of circumstances which would render the information originally submitted false or incomplete.
(d) An application for a sexually-oriented business license shall be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. 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 (6) inches. Applicants who are required to comply with Sections 14 and 18 of this Ordinance shall submit a diagram indicating that the premises meet the requirements of those sections.
(e) If a person who wishes to operate a sexually-oriented business is an individual, he shall sign the application for a license as applicant. If a person who wishes to operate a sexually-oriented business is other than an individual, each person with an influential interest in the business, and each officer, director, general partner or other person who will participate directly in decisions relating to management and control of the business shall sign the application for a license as applicant. Each applicant must be qualified under Section 5 and each applicant shall be considered a licensee if a license is granted.
(f) The information provided by an applicant in connection with an application for a license under this Ordinance shall be maintained by the County Clerk on a confidential basis, except that such information may be disclosed only to law enforcement agencies in connection with a law enforcement or public safety function, or as may be required by governing law or court order.
Section 5. Issuance of license.
(a) Within twenty (20) days of the filing date of a completed sexually-oriented business license application, the Clerk shall issue a license to the applicant or issue to the applicant a letter of intent to deny the application. The Clerk shall issue a license unless one or more of the following is found to be true:
(1) An applicant is less than eighteen (18) years of age.
(2) An applicant has failed to provide information as required by Section 4 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 Ordinance has not been paid.
(4) The sexually-oriented business, as defined herein, is not in compliance with the interior configuration requirements of this Ordinance or is not in compliance with locational requirements of this Ordinance of the Bell County Code;
(5) An applicant, or any business in which the applicant has had an influential interest, has, in the previous five (5) years;
(i) had a license or permit suspended or revoked under this Ordinance or under a similar sexually-oriented business / adult entertainment ordinance in another jurisdiction; or
(ii) been declared by a court of law to be a nuisance; or
(iii) 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 this Ordinance.
(b) Within twenty (20) days of the filing date of a completed sexually-oriented business employee license application, the Clerk shall either issue a license or issue a written notice of intent to deny a license to the applicant. The Clerk shall approve the issuance of a license unless one or more of the following is found to be true.
(1) The applicant is less than eighteen (18) years of age.
(2) The applicant has failed to provide information as required by Section 4 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 Ordinance has not been paid.
(4) The applicant, or any business in which the applicant has had an influential interest, has, in the previous five (5) years:
(i) had a license or permit suspended or revoked under this Ordinance or under a similar sexually-oriented business / adult entertainment ordinance in another jurisdiction; or
(ii) been declared by a court of law to be a nuisance; or
(iii) been subject to an order of closure or padlocking.
(5) The applicant has been convicted of or pled guilty or nolo contender to a specified criminal activity, as defined in this Ordinance.
(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. Licenses shall be issued on a calendar year basis, beginning on January 1st and ending on December 31st of each year. Partial year license fees will be prorated accordingly based on months or partial months remaining in the calendar year. 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 easily read at any time. 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 and shall produce such license for inspection upon reasonable request by a law enforcement officer or other County official performing functions connected with the enforcement of this Ordinance.
Section 6. Fees.
The initial license and calendar year, initial and renewal fees for sexually-oriented business licenses and sexually-oriented business employee licenses shall be as follows: Five Hundred Dollars ($500) for the initial fee for a sexually-oriented business license and Two Hundred Fifty Dollars ($250) for each successive calendar year renewal; One Hundred Dollars ($100) for the initial sexually-oriented business employee license and Fifty Dollars ($50) for each successive calendar year renewal.
Section 7. Inspection.
(a) Sexually-oriented businesses and sexually-oriented business employees shall permit officers or agents of Bell County 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 Ordinance, during those times when the sexually-oriented business is occupied by patrons or is open for business. A licensee’s knowing or intentional refusal to permit such an inspection shall not constitute a misdemeanor, but shall constitute a violation of this section for purposes of license denial, suspension, and/or revocation. This section shall be narrowly construed by the County to authorize reasonable inspections of the licensed premises pursuant to this Ordinance, but not to authorize a harassing or excessive pattern of inspections.
(b) The provisions of this Section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation.
Section 8. Expiration 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. Such license may be renewed only by making application and payment of a fee as provided in Section 4 and Section 6.
(b) Application for renewal should be made at least ninety (90) days before the expiration date, and when made less than ninety (90) days before the expiration date, the expiration of the license will not be affected.
Section 9. Suspension.
(a) The County shall issue a written letter of intent to suspend a sexually-oriented business license for a period not to exceed thirty (30) days if the sexually-oriented business licensee has knowingly violated this Ordinance or has knowingly allowed an employee to violate this Ordinance.
(b) The County shall issue a written letter of intent to suspend a sexually-oriented business employee license if it is determined that the employee has knowingly violated this Ordinance.
Section 10. Revocation.
(a) The County shall issue a letter of intent to revoke a sexually-oriented business license or a sexually-oriented business employee license if the licensee commits two or more causes of suspension in Section 9 within a twelve-month (12-mo.) period.
(b) The County shall issue written intent to revoke a sexually-oriented business license or a sexually-oriented business employee license, as applicable, if the Clerk determines that:
(1) The licensee has knowingly given false information in the application for the sexually-oriented business license;
(2) The licensee has knowingly or recklessly engaged in or allowed possession, use, or sale of controlled substances on the premises;
(3) The licensee has knowingly or recklessly engaged in or allowed prostitution on the premises;
(4) The licensee knowingly or recklessly operated the sexually-oriented business during a period of time when the license was suspended;
(5) The licensee has knowingly or recklessly engaged in or allowed any specified sexual activity to occur in or on the licensed premises; or
(6) The licensee has been convicted of a specified criminal activity, as defined in this Ordinance.
(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 on appeal, that conviction shall be treated as null and of no effect for revocation purposes.
(d) Nature of Revocation. When, after the notice and hearing procedure described in Section 11, the Hearing Officer revokes a license, the revocation shall continue for two (2) years and the licensee shall not be issued a sexually-oriented business license or sexually-oriented business employee license for two (2) years from the date revocation becomes effective.
Section 11. Hearing; denial, revocation, and suspension; appeal.
(a) If the County Clerk determines that facts exist for denial, suspension or revocation of a license under this Ordinance, the County shall notify the applicant or licensee (respondent) in writing of the intent to deny, suspend or revoke the license, including the grounds thereof, by personal delivery or by certified mail. The notification shall be directed to the most current business address or other mailing address on file with the County Clerk for the respondent. Within ten (10) working days of receipt of such notice, the respondent may provide to the County Clerk a written response that shall include a statement of reasons why the respondent believes the license should not be denied, suspended or revoked.
Within five (5) days of the receipt of respondent’s written response, the County Clerk shall notify respondent in writing of the hearing date on respondent’s denial, suspension or revocation proceeding. Within ten (10) working days of the receipt of respondent’s written response, the Hearing Officer shall conduct a hearing at which 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 County’s witnesses. The County 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 (2) days, unless extended to meet the requirements of due process and proper administration of justice. The Hearing Officer shall issue a written opinion within five (5) days after hearing.
If a court action challenging the County’s decision is initiated, the County shall prepare and transmit to the court a transcript of the hearing within ten (10) days after the issuance of the Hearing Officer’s written opinion. If a response is not received by the County Clerk in the time stated or, if after the hearing the Hearing Officer finds that grounds as specified in this Ordinance exist for denial, suspension or revocation, then such denial, suspension or revocation shall become final five (5) days after the Hearing Officer sends, by certified mail, written notice to the respondent that the license has been denied, suspended or revoked. Such notice shall include a statement advising the respondent of the right to appeal such decision to a court of competent jurisdiction. If the Hearing Officer finds that no grounds exist for denial, suspension or revocation of a license, then within five (5) days after the hearing, the Hearing Officer shall order the County Clerk 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. The County Clerk shall contemporaneously therewith issue the license to the applicant.
(b) When a decision to deny, suspend or revoke a license becomes final, the applicant or licensee (aggrieved party) whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal or challenge such action to any court of competent jurisdiction by filing an original action, petition for certiorari, petition for mandamus, or any pleading to challenge the County’s decision. The County will 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.
Section 12. 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.
Section 13. 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.
Section 14. Regulations pertaining to exhibition of sexually explicit films or videos.
(a) A person who operates or causes to be operated a sexually-oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette 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 manager’s stations, viewing rooms, overhead lighting fixtures, video cameras and monitors installed for monitoring purposes and restrooms, and shall designate all portions of the premises in which patrons will not be permitted. Restrooms shall not contain video reproduction equipment. The diagram shall also designate the place at which the permit 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 Clerk 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) The application shall be sworn to be true and correct by the applicant.
(3) No alteration in the configuration or location of a manager’s station or viewing room may be made without the prior approval of the County Clerk.
(4) It shall be the duty of the operator, any 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 in the application filed pursuant to Paragraph 1 of this subsection.
(5) The interior premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than five (5) foot candles as measured at the floor level. It shall be the duty of the operator, and of any employees present on the premises, to ensure that the illumination described above is maintained at all times that the premises is occupied by patrons or open for business.
(6) It shall be the duty of the operator, and of any employees present on the premises, to ensure that no sexual activity occurs in or on the licensed premises.
(7) It shall be the duty of the operator, and of any employees present on the premises, to ensure that not more than one person is present in a viewing room at any time. No person shall enter a viewing room that is occupied by another person.
(8) It shall be the duty of the operator, and of any employees present on the premises, to ensure that no openings of any kind exist between viewing rooms. No person shall make an attempt to make an opening of any kind between viewing rooms.
(9) It shall be the duty of the operator, or of any employee who discovers two or more patrons in a viewing room or discovers any person making or attempting to make an opening of any kind between viewing rooms, to immediately escort such persons from the premises.
(10) It shall be the duty of the operator, or of any employee, who discovers an opening of any kind between viewing rooms to immediately secure such rooms, and prevent entry into them by any patron until such time as the wall between the rooms has been repaired to remove the opening. Removal and repairing openings between viewing rooms shall be in a manner that is as structurally substantial as the original wall construction.
(11) It shall be the duty of the operator, at least once each business day, to inspect the walls between viewing rooms for openings of any kind, documented by appropriate logs.
(12) 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:
(i) That no loitering is permitted in viewing rooms.
(ii) That the occupancy of viewing rooms is limited to one person.
(iii) That sexual activity on the premises is prohibited.
(iv) That the making of openings between viewing rooms is prohibited.
(v) That violators will be required to leave the premises.
(vi) That violations of subparagraphs (b), (c) and (d) of this paragraph
are unlawful.
(13) It shall be the duty of the operator to ensure that floor coverings in viewing rooms are nonporous, easily cleanable surfaces, with no rugs or carpeting.
(14) It shall be the duty of the operator to ensure that all wall surfaces and seating surfaces in viewing rooms are constructed of or permanently covered by nonporous easily cleanable material.
(15) It shall be the duty of the operator to ensure that premises are clean and sanitary. Such duty shall be fulfilled if the operator complies with the following cleaning procedures:
(i) The operator shall maintain a regular cleaning schedule of at least two cleanings per day, documented by appropriate logs.
(ii) The operator shall provide an employee to check all areas for garbage, trash, body fluids and excrement and to remove and clean all areas with a disinfectant. All solid waste generated by the business shall be collected from the premises for disposal at a lawful solid waste disposal facility at least twice each week. Prior to collection solid waste shall be stored in a manner that prevents access by animals or members of the public and which will not facilitate the creation of a health nuisance.
(iii) Thorough cleaning of the entire interior of any room providing patron privacy shall be done using a disinfectant. Cleaning shall include floors, walls, doors, seating, monitors, video cameras and windows and other surfaces.
(16) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises, including the interior of each viewing room but excluding restrooms, to which a patron is permitted access for any purpose. A manager’s station shall not exceed thirty-two (32) square feet of floor area. If the premises has two (2) or more manager’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 from at least one of the manager’s stations. The view required in this paragraph must be by direct line of sight from the manager’s station. It is the duty of the operator to ensure that at least one employee is on duty and situated in each manager’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 paragraph 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.
(17) It shall be the duty of the operator or manager of the business to ensure that no “sexually-oriented entertainment activity” or visual depictions characterized by an emphasis on actual “specified anatomical areas” or “specified sexual activities” are visible from a public right-of-way adjacent to the establishment.
It shall be unlawful for a person having a duty under this section to knowingly fail to fulfill that duty.
Section 15. Loitering, exterior lighting, visibility and monitoring requirements.
(a) It shall be the duty of the operator of a sexually-oriented business to: (a) post conspicuous signs stating that no loitering is permitted on such property; (b) designate one or more employees to monitor the activities of persons on such property by visually inspecting such property at least once every ninety (90) minutes or inspecting such property by use of video cameras and monitors; and (c) provide lighting of the exterior premises to provide for visual inspection or video monitoring to prohibit loitering. 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 a manager’s station.
(b) It shall be unlawful for a person having a duty under this section to knowingly fail to fulfill that duty.
(c) No sexually-oriented business shall erect or maintain a fence, wall or other barrier that prevents any portion of the parking lot(s) for the establishment from being visible from a public right-of-way.
Section 16. Penalties and enforcement.
(a) In addition to the license denial, suspension and revocation sanctions set forth above, a person who knowingly violates, disobeys, omits, neglects or refuses to comply with or resists the enforcement of any of the provisions of this Ordinance shall be subject to a citation and a civil fine, not to exceed $500, upon proper adjudication in a court of competent jurisdiction. Each day the violation is committed, or permitted to continue, shall constitute a separate offense and shall be fined as such.
(b) The County Attorney is hereby authorized to institute civil proceedings necessary for the enforcement of this Ordinance to prosecute, restrain or correct violations hereof. Such proceedings, including injunction, shall be brought in the name of the County, provided, however, that nothing in this Section and no action taken hereunder, shall be held to exclude such criminal proceedings as may be authorized by other provisions of the County code, or any of the laws or ordinances in force in the County or to exempt anyone violating this code or any part of the said laws from any penalty which may be incurred.
Section 17. Applicability of ordinance to existing businesses.
All existing sexually-oriented businesses and sexually-oriented business employees are hereby granted a De Facto Temporary License to continue operation or employment for a period of thirty (30) days following the effective date of this Ordinance, and shall be required to apply for an annual license by the end of the 30-day period. During the De Facto Temporary License period, existing businesses and employees shall otherwise comply with the provisions of this Ordinance.
Section 18. Prohibited activities.
It is unlawful for a sexually-oriented business to knowingly violate the following regulations or to knowingly allow an employee or any other person to violate the following regulations.
(a) It shall be a violation of this Ordinance for a patron, employee or any other person to knowingly or intentionally, in a sexually-oriented business, appear in a state of nudity, regardless of whether such public nudity is expressive in nature.
(b) It shall be a violation of this Ordinance for a person to 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 (6) feet from any patron or customer on a state at least eighteen (18) inches from the floor in a room of at least one thousand (1,000) square feet.
(c) It shall be a violation of this Ordinance for any employee who regularly appears semi-nude in a sexually-oriented business to knowingly or intentionally touch a customer or the clothing of a customer on the premises of a sexually-oriented business.
(d) It shall be a violation of this Ordinance for any person to sell, use or consume alcoholic beverages on the premises of a sexually-oriented business.
A clearly legible sign measuring 24” x 36” in size (minimum) stating the provisions of Paragraphs (a), (b), (c) and (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.
Section 19. Scienter required to prove violation or business licensee liability.
Unless a culpable mental state is otherwise specified herein, a showing of a knowing or reckless act is necessary to establish a violation of a provision of this Ordinance. Notwithstanding anything to the contrary, for the purposes of this Ordinance, 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 Ordinance, 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.
Section 20. Failure of County to meet time frame not to risk applicant/licensee rights.
In the event that a County official is required to take an act or do a thing pursuant to this Ordinance within a prescribed time, and fails to take such act or 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 County under this Ordinance, but not completed in the time prescribed, includes approval of condition(s) necessary for approval by the County of an applicant or licensee’s application for sexually-oriented business license or a sexually-oriented business employee’s license (including renewal), the condition shall be deemed approved and the business or employee allowed to commence operations or employment the day after the deadline for the County’s action has passed.
Section 21. Location of sexually-oriented businesses.
(a) It shall be unlawful to establish, operate or cause to be operated a sexually-oriented business in Bell County, unless said sexually-oriented business is at least:
(1) 1,000 feet from any parcel occupied by another sexually-oriented business;
(2) 1,000 feet from any parcel occupied by a house of worship, day care center, public or private elementary or secondary school; or
(3) 1,000 feet from any parcel occupied by any structure used for residential purposes;
provided that any sexually-oriented business in existence and legally operating at a nonconforming location on the effective date of this Ordinance shall not be subject to the locational requirements of this section.
(b) For the purpose of this section, measurements shall be made in a straight line in all directions without regard to intervening structures or objects, from the nearest property line of the parcel upon which the sexually-oriented business is situated to the nearest property line of the use(s) identified in subsection (a)(1) – (a)(3) above.
Section 22. Severability.
This Ordinance and each section and provision of said Ordinance hereunder, are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said Ordinance, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Should any procedural aspect of this Ordinance be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this Ordinance.
Section 23. Conflicting code provisions repealed.
Any provision(s) in the Bell County Code specifically in conflict with any provisions in this Ordinance is hereby deemed inoperative and repealed, to the extent that said provision(s) would prevent the operation of the specific provision(s) in this Ordinance.
Section 24. Enactment date.
This Ordinance shall become effective upon final passage and publication in the Middlesboro Daily News.
PASSED on first reading this ______ day of ________________, 2005.
William Kelley John D. Brock, Sr.
County Judge Executive Fiscal Court Member
Charles F. Hunter Earl Gilbert
Fiscal Court Member Fiscal Court Member
Coye H. Silcox Andrew “Andy” Williams
Fiscal Court Member Fiscal Court Member
ATTEST:
Clerk, Fiscal Court
PASSSED on second and final reading this _______ day of ______________, 2005
William Kelley John D. Brock, Sr.
County Judge Executive Fiscal Court Member
Charles F. Hunter Earl Gilbert
Fiscal Court Member Fiscal Court Member
Coye H. Silcox Andrew “Andy” Williams
Fiscal Court Member Fiscal Court Member
ATTEST:
Clerk, Fiscal Court
CERTIFICATION
I, the undersigned, do hereby certify that I am the duly qualified and acting Fiscal Court Clerk of the County of Bell, Kentucky; that the foregoing is a true and complete copy of a certain Ordinance duly adopted by the Fiscal Court of the County of Bell, Kentucky, at a duly convened public meeting property held on _____________________, 2005; that said Ordinance appears as a matter of public record in the official records of the Fiscal Court; that said meeting was duly held in accordance with all applicable requirements of Kentucky law, including KRS 61.805 to 61.850; that a quorum was present at said meeting; that said Ordinance has not been amended, modified, revoked or repealed; and that same is now in full force and effect.
IN TESTIMONY WHEREOF, witness my signature this _______________, 2005.
Fiscal Court Clerk
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