Ordinance No. 239 – Adult Oriented Businesses

AN ORDINANCE PROVIDING FOR THE REGULATION OF ADULT ORIENTED BUSINESSES IN THE CITY OF WABASSO, PROVIDING FOR THE ISSUANCE OF LICENSES AND COLLECTION OF FEES, THEREFORE; PROVIDING PENALTIES FOR THE VIOLATION THEREOF

The City Council of the City of Wabasso does ordain as follows:

ADULT ESTABLISHMENTS

Section 1. Purpose and Intent.

Subdivision 1. Findings. It is the purpose of this Ordinance to regulate Adult Oriented Businesses to promote the health, safety, morals and general welfare of the citizens of the City and to establish reasonable and uniform regulations to:

• Prevent additional criminal activity within the City;
• Diminish the adverse impact of Adult Oriented Businesses by imposing locational requirements, licensing requirements and health requirements;
• To locate Adult Oriented Businesses away from residential areas, schools, churches, parks and playgrounds;
• Prevent concentration of Adult Oriented Businesses within certain areas of the city.

Subdivision 2. The provisions of this Ordinance have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communicative materials including adult oriented materials. Similarly, it is not the intent nor the effect of this Ordinance to restrict or deny access by adults to adult oriented materials protected by the First Amendment, or to deny access by distributors and exhibitors of adult oriented entertainment to their intended market.

Section 2. Definitions.

Subdivision 1. For the purposes of this section the terms defined in this section have the meanings given them.

Subdivision 2. Adult Use. Any of the activities and businesses described below constitute “Adult Oriented Businesses” which are subject to the regulation of this Ordinance.

Subdivision 3. Adult Book and/or Media Store. An establishment which excludes minors and which has a substantial portion of its stock in trade or stock on display, including but not limited to books, magazines, films, videotape or other media which is characterized by their emphasis on matter depicting, depicting, describing, or related to Specified Sexual Activities or Specified Anatomical Areas.

Subdivision 4. Adult Cabaret.  An establishment which provides dancing or other live entertainment if such establishment excludes minors by virtue of age from all or part of the establishment and if such dancing or other live entertainment is characterized by an emphasis on the performance, depiction or description of Specified Sexual Activities or Specified Anatomical Areas.

Subdivision 5. Adult establishment. Any business that offers its patrons services, entertainment or merchandise characterized by an emphasis on matter depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas. Specifically included in the term, but without limitation, are adult book and media stores, adult cabarets, adult hotels or motels, adult mini-motion picture theaters, adult modeling studios, adult motion picture arcades, adult motion picture theaters, adult novelty businesses, and other adult establishments.

Subdivision 6. Adult Hotel or Motel. Adult Hotel or Motel means a hotel or motel from which minors are specifically excluded from patronage and wherein material is presented which is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Subdivision 7. Adult Mini-Motion Picture Theaters.

• A theater in an enclosed building, from which minors are excluded from all or part of the establishment, with a capacity for less than 50 persons used for presenting motion pictures, including but not limited to, film and videotape, having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing, or relaying to specified sexual activities or specified anatomical areas.
• Any business which presents motion pictures, from which minors are excluded from all or part of the establishment, including films and video tapes, having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, for viewing on the premises including but not limited to, private booths, viewing by coin operated or other mechanical devices, and the viewing of excerpt of motion pictures offered for sale or rent.

Subdivision 8. Adult Modeling Studio. An establishment, which excludes minors from all or part of the establishment, whose major business is the provision to customers of figure models where so provided with the intent of providing sexual stimulation or sexual gratification to such customers and who engage in specified sexual activities or display specified anatomical areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed or otherwise depicted by such customers.

Subdivision 9. Adult Motion Picture Arcade. Any place which excludes minors from all or part of the establishment wherein coin or token operated or electronically, electrically, or mechanically controlled or operated still or motor picture machines, projectors, or other image producing devices are maintained to maintained to show images to five or fewer persons per machine at any one time, and where images so displayed are distinguished or characterized by an emphasis on depicting or describing sexually specified activities or specified anatomical areas.

Subdivision 10. Adult Motion Picture Theater.  A theater in an enclosed building from which minors are exclude from all or part of the establishment with a capacity of 50 or more persons used regularly and routinely for presenting live entertainment or motion pictures, including but not limited to film and videotapes, having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas  for observation by patrons herein.

Aubdivision 11. Adult Novelty Business. A business, from which minors are excluded from all or part of the establishment, which sells, offers to sell, or displays devices which stimulate human genitals or devices which are designed for sexual stimulation.

Subdivision 12. Specified Anatomical Areas are any of the following conditions:

• Less than completely and opaquely covered;
• Human genitals, pubic region or pubic hair;
• Buttock; and
• Female breast below a point immediately above the top of the areola; and
• Human male genitals in a discernible turgid state, even if opaquely covered.

Subdivision 13.  Specified Sexual Activities are any of the following conditions:

• An act of sexual intercourse, normal or perverted, actual or simulated, including genital-genital, anal-genital, or oral-genital intercourse, whether between human beings or human beings and animal.
• Sadomasochistic abuse, meaning flagellation or torture by or upon a person who is nude or clad in under garments or in a revealing costume or the condition of being fettered, bound, or otherwise physically restricted on the part of one so clothed.
• Masturbation or lewd exhibition of genitals including any explicit, close-up representation of a human genital organ clothed or unclothed.
• Physical contact or simulated physical contact with the clothed or unclothed pubic areas or buttocks of a human male or female, or the breasts of a female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.

Section 3. Application of this Ordinance.

                Except as in this Ordinance specifically provided, no structure shall be erected, converted, enlarged, reconstructed, or altered, and no structure or land shall be used for any purpose nor in any manner which is not in conformity with this ordinance.

                No Adult Oriented Business shall engage in any activity or conduct or permit any other person to engage in any activity or conduct in or about the establishment which is prohibited by any ordinance of the City of Wabasso, the laws of the State of Minnesota, or the United States of America. Nothing in this Ordinance shall be construed as authorizing or permitting conduct which is prohibited or regulated by other statutes or ordinances, including but not limited to statutes or ordinances prohibiting the exhibition, sale, or distribution of specified materials to minors.

                All public and private schools located within the City of Wabasso are exempt from obtaining a license hereunder when instructing pupils in sex education as part of its curriculum.

Section 4. Location.

During the term of this ordinance, no Adult Oriented business shall be located less than 300 feet from any site used for residential purposes, and less than 300 feet from any church site, from any school site, from any daycare facility, public library, or from any public park. In addition, no Adult Oriented business may be located within 300 feet of another Adult Oriented Business. For purposes of this ordinance, this distance shall be a horizontal measurement from the nearest existing residential district boundary or site used for residential purposes, church site, school site, daycare site, park site or another Adult Oriented Business site to the nearest boundary of the proposed Adult Oriented Business site.

Section 5. Hours of Operation.

No Adult Oriented Business site shall be open to the public from the hours of 11:00 pm to 9:00 am.

Section 6. Operation.

Subdivision 1. Off-site Viewing. An establishment operating as an Adult Oriented Business shall prevent off-site viewing of its merchandise, which if viewed by a minor, would be in violation of Minnesota Statutes 317 or other applicable Federal or State Statues or local ordinances.

Subdivision 2. Entrances. All entrances to the business, with the exception of emergency fire exits which are not usable by patrons to enter the business, shall be visible from a public right of way.

Subdivision 3. Layout. The layout of the display areas shall be designed so that management of the establishment and any law enforcement personnel inside the store can observe all patrons while they have access to any merchandise offered for sale or viewing including but not limited to books, magazines, photographs, video tapes or other material.

Subdivision4. Illumination. Illumination of the premises exterior shall be adequate to observe the location and activities of all persons on the exterior of the premises.

Subdivsion 5. Signs. All businesses regulated under this ordinance shall comply with the following sign requirements:

• All signs shall be wall signs.
• No merchandise of the products or entertainment on the premises shall be displayed in the window areas or in any area where they can be viewed from a public street or sidewalk in front of the building.
• Window areas shall not be covered or made opaque in any way.
• No sign shall be placed in any window.
• A one square foot sign shall be placed on the door of the establishment to state the hours of operation and admittance to adults only.

Subdivision 6. Responsibilities of Operator.

• Every act or omission by an employee constituting a violation of the provisions of this ordinance shall be deemed the act or omission of the operator if such act or omission occurs either with the authorization, knowledge, or approval of the operator or as a result of the operator’s negligent failure to supervise the employee’s conduct, and the operator shall be punishable for such act or omission in the same manner as if the operator had committed the act or caused the omission.
• Any act or omission of any employee constituting a violation of the provisions of this ordinance shall be deemed the act or omission of the operator for the purposes of determining whether the operator’s license shall be revoked, suspended or renewed.
• No employee of an Adult Oriented Business shall allow any minor to loiter around or to frequent an Adult Oriented Business or to allow any minor to view adult entertainment.
• The operator shall maintain the premises in a clean and sanitary manner at all times.
• The operator shall maintain at least ten foot candles of light in the public portions of the establishment including aisles at all times. However, if a lesser level of illumination in the aisles shall be necessary to enable a patron to view the adult entertainment in a booth, room or cubicle adjoining an aisle, a lesser amount of illumination shall be maintained in such aisles, provided, however, at no time shall there be less than 1 foot candle of illumination in said aisles as measured from the floor.
• All business transactions shall occur within the licensed building.
• No employee shall have been convicted of any felony involving moral turpitude, prostitution, obscenity or other crime of a sexual nature or involving the use or distribution of a controlled substance as defined by Minnesota laws, or the use or distribution of a dangerous weapon. The fact that a conviction may be under appeal shall not affect the disqualification of the employee.
• The operator shall ensure compliance of the establishment and its patrons with the provisions of this ordinance.

Section 7. Additional Conditions for Adult Cabarets.  

The following additional conditions apply to adult cabarets:

• No owner, operator or manager of an adult cabaret shall permit or allow any dancer or other live entertainer to perform nude.
• No dancer, live entertainer, performer, patron or any other person shall be nude in an adult cabaret.
• The owner, operator or manager of an adult cabaret shall provide the following information to the city concerning any persons who dance or perform live entertainment at an adult cabaret: the person’s name, home address, home telephone number, date of birth and any aliases.
• No dancer, live entertainer or performer shall be under 18 years old.
• All dancing or live entertainment shall occur on a platform intended for that purpose and which is raised at least two feet from the level of the floor.
• No dancer or performer shall perform any dance or live entertainment closer than 10 feet to any patron.
• No dancer or performer shall caress or fondle any patron and no patron shall fondle or caress any dancer or performer.
• No person shall pay or give any gratuity to any dancer or performer.
• No dancer or performer shall solicit any pay or gratuity from any patron.

Section 8. Licenses.

Subdivision 1. Licenses Required. All establishments, including any business operating at the time this Ordinance becomes effective, operating or intending to operate Adult Oriented Business shall apply for and obtain a license from the City of Wabasso. A person is in violation of the City Code if he or she operates an Adult Oriented Business without a valid license issued by the City.

Subdivision 2. Applications. An application for a license must be made on a form provided by the City and shall include:

• If the applicant is an individual, the name, residence, phone number and birth date of the applicant. If the applicant is a partnership, the name, residence, phone number and birthdate of each general and limited partner. If the applicant is a corporation, the names, residences, phone numbers and birthdates of all those persons holding more than five (5) percent of the issued and outstanding stock of the corporation.
• The name, address, phone number and birthdate of the operator and manager of such operation, if different from the owners.
• The address and legal description of the premises where the adult establishment is to be located.
• A statement detailing any gross misdemeanor or felony convictions relating to sex offenses, obscenity or the operation of an adult establishment or adult business by the applicant, operator or manager whether or not the applicant, operator or manager has ever applied for or held a license to operate a similar type of business in other communities. In the case of a corporation, a statement detailing any felony convictions by the owners of more than five (5) percent of the issued and outstanding stock of the corporation and whether or not those owners have ever applied for or held a license to operate a similar type of business in other communities.
• The activities and types of business conducted.
• The hours of operation.
• The provisions made to restrict access of minors.
• A building plan of the premises detailing all internal operations and activities.
  

Subdivision 3. Investigations.

• The police chief or other designated person shall complete the investigation within 30 days after clerk receives a complete application and all license and investigation fees.
• All police, fire and building code investigations shall be completed within 21 days after the date the application is filed with the City Clerk. Upon a showing of good cause and reasonable diligence on the part of an investigator, the City Council may extend the investigation period for a reasonable length of time. Any investigation not completed not completed within the allotted time shall be deemed to be waived.