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0616 Sexually Oriented Businesses 2006AN ORDINANCE OF THl 5.36: SEXUALLY ORIEN ORDINANCES; PROVIDI THIS ORDINANCE; AND BECOME EFFECTIVE. BE IT ORDAINED BY TE CHUBBUCK, IDAHO: WHEREAS, a review of m within the cities reveals that they rt the City in order to protect and pre; such businesses as well as the citiz WHEREAS, the City Coun for unlawful sexual activities, inch and WHEREAS, the concern of of a city which demands reasonabli the health and well-being of the cit OF CHUBBUCK, IDAHO ZDINANCE NO. 616 CITY OF CHUBBUCK, IDAHO, ADDING CHAPTER ED BUSINESS; REPEALING PRIOR CONFLICTING IG FOR THE SEVERABILITY OF THE PROVISIONS OF ?ROVIDING WHEN THIS ORDINANCE SHALL MAYOR AND COUNCIL OF THE CITY OF icipalities' experiences with sexually oriented businesses xire`special supervision from the public safety agencies of ve the health, safety, morals and welfare of the patrons of s of a city; and 1 finds that sexually oriented businesses are frequently used ling prostitution, and for sexual liaisons of a casual nature; ;r sexually transmitted diseases is a legitimate health concern regulation of sexually oriented businesses in order to protect :ens; and WHEREAS, licensing is a 1 gitimate and reasonable means of accountability to ensure that operators of sexually oriented usinesses comply with reasonable regulations and to ensure that operators do not knowingly all ow their establishments to be used as places of illegal sexual activity or solicitation; and WHEREAS, there is convii ing documented evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residents I areas adjacent to them, causing increased crime and the downgrading of property values; ard` WHEREAS, it is recognize serious objectionable operational cl proximity to each other, thereby co in the adjacent area; and WHEREAS, the City Couni thereby protect the health, safety ar, crime; preserve the quality of life;1 neighborhoods, and deter the spreai WHEREAS, the City adequately protect the health, that sexually oriented businesses, due to their nature, have ►racteristics, particularly when they are located in close hbuting to urban blight and downgrading the quality of life 1 desires to minimize and control these adverse effects and welfare of the citizenry; protect the citizens from increased eserve the property values and character of surrounding of urban blight; and I has determined that locational criteria alone do not and general welfare of the people of this City; and WHEREAS, it is not the int nt of this Ordinance to suppress any speech activities protected by the First Amendment, ut to enact a content -neutral ordinance which addresses the secondary effects of sexually orient businesses; and Ordinance- Page 1 ch ubbuck042506.ordinance.wpd M • WHEREAS, it is not the ii distribution of obscene material, a the distribution of obscene materi to enforce state obscenity statutes Pursuant to the authority g Idaho, the following Chapter 5.36 Section 5.36.010 Purpose ani 5.36.020 Definitions 5.36.030 5.36.040 5.36.050 5.36.060 5.36.070 5.36.080 5,36.090 5.36.100 5.36.110 5.36.120 5.36.130 5.36.140 0 nt of the City Council to condone or legitimize the the Council recognizes that state and federal law prohibits and expects and encourages state law enforcement officials ainst any such illegal activities in the City. ited by the Constitution and the legislature of the State of being adopted by the City Council of Chubbuck: Chapter 5.36 Findings License Req ired Issuance of License Fees Inspection Expiration of License Suspension Revocation Hearing; Licen Transfer of lic Location of Se Regulations e Live Enterta n] 5.36.150 Additional IR e 5.36.160 Additional F et 5.36.170 Prohibition i g 5.36.180 Hours of Op or, 5.36.190Exemptions 5.36.200 Injunction (a) Purpose: It is the r in order to promote the health, saf to establish reasonable and unifon concentration of sexually oriented have neither the purpose nor effec, communicative materials, includir effect of this Chapter to restrict or by the First Amendment, or to den entertainment to their intended ma condone or legitimize the distribut Denial, Suspension, Revocation; Appeal wally Oriented Businesses raining to Exhibition of Sexually Explicit Films, Videos or ent in Viewing Rooms ilations for Escort Agencies ilations Concerning Public Nudity inst Children in a Sexually Oriented Business gals; irpose of this Chapter to regulate sexually oriented businesses ,y, morals and general welfare of the citizens of the City, and regulations to prevent the deleterious location and iusinesses within the City. The provisions of this Chapter Df imposing a limitation or restriction on the content of any sexually oriented materials. Similarly, it is not the intent nor lent' access by adults to sexually oriented materials protected access by the distributors and exhibitors of sexually oriented ket. Neither is it the intent nor effect of this Chapter to )n of obscene material. (b) Findings: Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the Council, and on findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini 21eatres, 426 U.S. 50 (1976), FW/PBS, Inc. V. City of Dallas, 493 U.S. 215 (1990); Barnes v. Gln Theatre, Inc., 501 U.S. 560 (1991), City of Erie v. Paps A.M., 120 S. Ct. 1382 (2000), and n studies in other communities, including, but not limited to: Ordinance - Page 2 chubbuck042506.ord1nance.wpd r • Phoenix, Arizona; Minneapolis, N Indiana; Amarillo, Texas; Garden California; Austin, Texas; Seattle, Beaumont, Texas; Dallas Texas; T New York; and St. Croix County, Attorney General's Working Grou 1989, State of Minnesota) and the 0 inesota; St. Paul, Minnesota; Houston, Texas, Indianapolis, rove, California; Los Angeles, California; Whittier, Vashington; Oklahoma City, Oklahoma; Cleveland, Ohio; wport News, Virginia; Bellevue, Washington; New York, Fisconsin; and also on findings from the Report of the on the Regulation of Sexually Oriented Businesses (June 6, 904 Idaho Epidemiologic Profile, the Council finds: (1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are often uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make the owners of these establishments responsible for the activities that occur on their premises. (2) Certain employees of sexually oriented businesses, defined in this Chapter as adult theaters and adult cabarets engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments. (3) Sexual acts, ncluding masturbation and oral and anal sex, occur at sexually oriented businesses, espec ally those which provide private or semi -private booths or cubicles for viewing videos, or liv sex shows. (4) Offering and providing such space encourages such activities, which creates unhealthy conditions. (5) Persons frequent certain adult theaters, adults arcades and other sexually oriented businesses for the purpose of engaging in sex within the premises of such sexually oriented businesses. (6) At least 50 communicable diseases may be spread by activities occurring in sexually oriented businesses, inc uding, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection IV -AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonellainfections shigella infections. (7) Since 1981 i number of reported cases of AIDS immunodeficiency virus (HIV) in t 8,555 in 1985, and 253,448 throug reported per year. (8) Idaho's first unduplicated cases of HIV/AIDS h cases reported, 557 have received men who have sex with other men HIV cases (not yet AIDS), the mos HIV cases were pediatric cases. 0 - their infection was diagnosed. Thi: infection (including AIDS at diagn MSM. id to the present, there has been an increasing cumulative Lcquired immunodeficiency syndrome) cause by the human United States: 600 in 1982; 2,200 in 1983; 4,600 in 1984, December 1992. Cumulatively, there are 40,000 new cases ;ase of HIV was reported in 1985. Since then, 1,074 ve been reported. Of the 1,074 unduplicated HIV/AIDS AIDS diagnosis. Most AIDS cases were in the category of MSM) exposure. Three AIDS cases were pediatric. Among frequently reported exposure category is also MSM. Six er three quarters of HIV cases were aged 20-39 years when y -three Idaho residents were newly diagnosed with HIV sis) in 2003. A majority of males diagnosed in 2003 were (9) HIV/AIDS i tied for the 10th leading cause of death for Idahoans aged 25- 44 years of age. However, new rep rted HIV/AIDS cases have outnumbered HIVAIDS deaths each year, resulting in an increase ' the number of persons living with HIV/AIDS in Idaho. Ordinance - Page 3 chubbuck042506.ordin4nce.wpd • (10) The number States reported annually has risen, November 1990. In Idaho, syphili this increase is among persons con early syphilis increased dramatical disease. of cases of early (less than one year) syphilis in the United with 33,613 cases reported in 1982, and 45,200 through cases have increased dramatically from 1999-2003. Much of iidered to be part of a statewide outbreak. Rates and cases of y during 2002-2003, indicating ongoing transmission of the (11) Idaho's gon hea cases and rates show a slightly downward trend from 1999to 2003. Total cases report from 1999-2003 ranged from 68 in 2003 to 98 in 2000. Rates ranged from five per 100,0001 in 2003 to eight per 100,000 in 2000. (12) In his report f October 22, 1986, the Surgeon General of the United States advised the American public that A IDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components, and from an infected mother to her newborn. (13) According t the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are grin ipally transmitted by sexual acts. (14) Sanitary co part because the activities conduct nature of the activities and the faili regulate those activities and ma a (15) Numerous s areas of sexually oriented business (16) The finding; governmental concerns, (17) Sexually ori be reasonably regulated in order to (18) A reasonab] burden of that reasonable regulatic businesses. Further, such a licensi that the sexually oriented business welfare of its patrons and employe require reasonable assurances that business, fully in possession and c litions in some sexually oriented businesses are unhealthy, in I there are unhealthy, and in part because of the unregulated •e of the owners and the operators of the facilities to self - n those facilities. idies and reports have determined that semen is found in the s where persons view "adult" oriented films. noticed in Subsections (1) through (15) raise substantial businesses have operational characteristics which should ct those substantial governmental concerns. licensing procedure is an appropriate mechanism to place the on the owners and the operators of the sexually oriented procedure will place an incentive on the operators to see run in a manner consistent with the health, safety and as well as the citizens of the City. It is appropriate to to licensee is the actual operator of the sexually oriented itrol of the premises and activities occurring therein. (19) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occui ring in adult theaters. (20) Requiring licensees of sexually oriented businesses to keep information regarding current employees and c ain past employees will help reduce the incidence of certain types of criminal behavior by facili ting the identification of potential witnesses or suspects and by preventing minors from workin in such establishments. (21) The disclos a of certain information by those persons ultimately responsible for the day-to-day open tion and maintenance of the sexually oriented business, where such information is'substanti Ftlly related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases. Ordinance - Page 4 chubbudc042506.ordinance.wpd (22) In the prevei obtain a limited amount of infonng conduct which this Chapter is desi; conduct. (23) The fact that sexually related crime leads to the conduct in contravention of'this Cl (24) The barring period of years serves as a deterren sexually transmitted diseases. (25) The general will be promoted by the enactment Section 5.36.020 Definitions. 10 of the spread of communicable diseases, it is desirable to regarding certain employees who may engage in the to prevent, or who are likely to be witnesses to such an applicant for an adult use license has been convicted of a ational assumption that the applicant may engage in that f such individuals from the management of adult uses for a to, and prevents conduct which leads to, the transmission of lfare, health, morals and safety of the citizens of the City this Chapter. Words, terms and phrases i* this Chapter shall be defined as follows: (a) Adult arcade mean; coin-operated or slug -operated or E motion picture machines, projector show images to five (5) or fewer p displayed are distinguished or chaff sexual activities" or "specified ana (b) Adult Bookstore, Ac establishment which has a signific significant or substantial portion o its interior business or advertising, for the sale or rental, for any form (1) books, mag, films, motion pictures, video casse which are characterized by their er, activities" or "specified anatomica (2) instruments, marketed primarily for stimulation of the user or others. (c) Adult Cabaret mean establishment which regularly feats (1) persons who (2) live perform anatomical areas" or by "specified (3) films, me reproductions which are charact or "specified anatomical areas." Ordinance - Page 5 chubbuck042506.ordinance.wpd any place to which the public is permitted or invited, wherein .ectronically, electrically or mechanically controlled still or or other image -producing devises are regularly maintained to rsons per machine at any one time, and where the images so cterized by their emphasis upon matters exhibiting "specified Dmical areas." ;dt Novelty Store or Adult Video Store means a commercial rit or substantial portion of its stock -in -trade, or derives a its revenues or devotes a significant or substantial portion of )r maintains a substantial section of its sales or display space f consideration, of any one or more of the following: pines, periodicals or other printed matter, or photographs, Les, compact discs, slides or other visual representations, phasis upon the exhibition or display of "specified sexual areas;" .evices or paraphernalia which are designed for use or f human genital organs or for sadomasochistic use or abuse a nightclub, bar, restaurant or similar commercial semi-nude; or which are characterized by the exposure of "specified I activities;" or pictures, video cassettes, slides or other photographic ed by the exhibition or display of "specified sexual activities" 0 (d) Adult Motel means , (1) offers accon provides patrons with closed-circui cassettes, slides or other photograp display of "specified sexual activiti from the public right-of-way whicr reproductions; and either (2) offers a sleet hours, or (3) allows a ten period of time that is less than ten (e) Adult Motion Pictu form of consideration, films, moti reproductions are regularly shown "specified sexual activities" or "sp (f) Adult Theater mean establishment which regularly feat performances which are characteri "specified sexual activities." (g) Distinguished or C principal theme of the object refer distinguished or characterized by activities or specified anatomical principal character and theme are "specified sexual activities." (h) Employee, Employ performs any service on the premi contract basis, regardless of wheth contractor, agent or by another stat premises for repair or maintenance L hotel, motel or similar commercial establishment which: modations to the public for any form of consideration; t television transmissions, films, motion pictures, video iic reproductions which are characterized by the exhibition or es" or "specified anatomical areas;" and has a sign visible advertises the availability of this adult type of photographic ing room for rent for a period of time that is less than ten (10) it or occupant of a sleeping room to subrent the room for a 0) hours. e Theater means a commercial establishment where, for any pictures, video cassettes, slides or similar photographic hich are characterized by the depiction or description of ified anatomical areas." a theater, concert hall, auditorium or similar commercial es persons who appear nude or semi-nude, or live ;d by the exposure of "specified anatomical areas" or racterized by an Emphasis Upon means the dominant or red. For instance, when the phrase refers to films "which are emphasis upon the exhibition or display of specified sexual as," the films so described are those whose dominant or exhibition or display of "specified anatomical areas" or d Employment describe and pertain to any person who of a sexually oriented business on a full-time, part-time or the person is denominated as an employee, independent . Employee does not include a person exclusively on the f the premises, or the for delivery of goods to the premises. (i) Enforcement ice shall mean the City Chief of Police, the Chief's designee or such person as may be designated by the City Council. 0) Escort means a person who, for consideration, and for another person, agrees or offers: (1) to act as a companion, giide or date, or (2) to privately model lingerie, or (3) to privately perform a striptease. (k) Escort Agency means a person or business association that, for a fee, tip or other consideration, furnishes, offers to 'sh or advertises to furnish escorts as one of its primary business purposes. (1) Establish or Establi, (1) the opening business; Ordinance - Page 6 chubbuck042506.ordinance.wpd means and includes any of the following: commencement of any sexually oriented business as a new N (2) the conversi' 'n of an existing business, whether or not a sexually oriented business, to any sexually oriented usiness; (3) the addition f any sexually oriented business to any other existing sexually oriented business; or (4) the relocation of any sexually oriented business. (m) Licensee means a P4 rson in whose name a license to operate a sexually oriented business has been issued, as well the individual listed as an applicant on the application for a license and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexu "lly oriented business. (n) Nude, Nudity or a genitals, pubic area, vulva, anus of of the female breast with less than showing of the covered male genii (o) Operate or Cause t state of doing business. Operator business who is authorized to exec function or who puts or keeps in o or causing to be operated a sexual] owner, part owner or licensee of tl (p) Person means an ir or other legal entity. (q) Regularly Features of conduct, such that the films or p films or performances offered as p (r) Semi-nude.or in a S below a horizontal line across the t or female buttocks. This definitio breast, but shall not include any po a dress, blouse, skirt, leotard, bathi exposed in whole or in part. (s) Semi-nude Model S features a person (or persons) who drawn, painted, sculptured or'phot4 consideration, but shall not include college, junior college or,universit, college or university which mainta transferable to a college, junior col (t) Sexual Encounter C one of its principal business purpo; or more persons may congregate, a activities." The definition of sexuc, not include an establishment when professional person licensed by the therapy. Ordinance - Page 7 chubbuck042506.ordinance.wpd ate of Nudity means the showing of the human male or female anal cleft with less than a fully opaque covering, the showing i fully opaque covering of any part of the nipple, or the Is in a discernibly turgid state. be Operated means to cause to function or to put or keep in a leans any person on the premises of a sexually oriented se operational control of the business, or who causes to -ration, the business. Aperson may be found to be operating oriented business regardless of whether that person is an business. vidual, proprietorship, partnership, corporation, association Regularly Shown means a consistent or substantial course ormances exhibited constitute a substantial portion of the of the ongoing business of the sexually oriented business. i -nude Condition means the showing of the female breast of the areola at its highest point or the showing of the male ►all include the entire lower portion of the human female )n of the cleavage of the human female breast, exhibited by suit or other wearing apparel, provided the areola is not udio means a commercial establishment which regularly ippears semi-nude and is provided to be observed, sketched, graphed by other persons who pay money or any form of a proprietary school licensed by the State of Idaho or a supported entirely or in part by public taxation; a private ns and operates educational programs in which credits are ege or university supported entirely or partly by taxation. enter means a business or commercial establishment that, as ;es, offers for any form of consideration a place where two (2) ssociate or consort for the purposes of "specified sexual J encounter center or any sexually oriented businesses shall .' a medical practitioner, psychologist, psychiatrist or similar state engages in medially approved and recognized sexual (u) Sexually Oriented �usiness means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, semi-nude model studio or sexual encounter center. (v) Specified Anatomical Areas means: (1) the human male genitals in a discernibly turgid state, even if completely and opaquely covered; or (2) less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola. (w) Specified Criminal Activity means any of the following offenses: (1) prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity relating to a sexually oriented business; sexual assault; molestation of a child; distribution',of a controlled substance; or any similar offenses to those described above under the criminal) or penal code of other states or countries; (2) for which: (A) less than two (2) 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; (B) less than five (5) years have elapsed since the date of conviction or the date of release from confinemept for the conviction, whichever is the later date, if the conviction is of a felony offense; or (C) less than five (5) 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 (2) or more misdemeanor offenses or a combination of misdemeanor offenses occurring within any twenty-four (24) month period. (3) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant. (x) Specified Sexual Activities means any of the following: (1) the fondling of another person's genitals, pubic region, anus or female breasts; (2) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation or sodomy; or (3) excretory functions as part of, or in connection with, any of the activities set forth in (1) and (2) above. (y) Substantial Enlargement of a sexually oriented business means the increase in floor areas occupied by the business by more than twenty-five percent (25%), as the floor areas exist on the date this Chapter takes effect. Ordinance - Page 8 chubbuck042506.ordinance.wpd (z) Transfer of Ownership or Control of a sexually oriented business means and includes any of the following: (1) the sale, lease or sublease of the business; (2) the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; or (3) the establishment of a trust, gift or other similar legal device which transfers the ownership of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. (aa) Zone shall mean that zone in Title 18, Chubbuck Municipal Code, in which an adult business may operate. Section 5.36.030 Classification. Sexually oriented businesses are classified as follows: (a) adult arcades; (b) adult bookstores, adult novelty stores or adult video stores; (c) adult cabarets; (d) adult motels; (e) adult motion picturetheaters; (f) adult theaters; (g) escort agencies; (h) semi-nude model studios; and (i) sexual encounter centers. Section 5.36.040 License Required. (a) It is unlawful: (1) For any person to operate a sexually oriented business without a valid sexually oriented business license issued by the City pursuant to this Chapter. (2) For any person who operates a sexually oriented business to employ a person to work for the sexually oriented business who is not licensed as a sexually oriented business employee by City pursuant to this Chapter. (3) For any person to obtain employment with a sexually oriented business without having secured a sexually oriented business employee licensed pursuant to this Chapter. (b) An application for a::licensemust be made on a form provided by the City. All applicants must be qualified according to the provisions of this Chapter. Ordinance - Page 9 chubbuck042506.ordinance.wpd (c) An applicant for a sexually oriented business license or a sexually oriented business employee license shall filwith the Enforcement Officer a completed application made on a form prescribed and provided y the City Clerk. An application shall be considered complete if it includes the information required in this Section. The applicant shall be qualified according to the provisions of this Chapter. The application shall be notarized. The application shall include the information called for in Subsections (1 through (6) and, where applicable, Subsection (7), as follows: (1) The full true! name and any other names used in the preceding five (5) years. (2) The current �usiness address. (3) Either a set c f fingerprints suitable for conducting necessary background checks pursuant to this Chapter, orthe applicant's Social Security Number, to be used for the same purpose. (4) If the application is for asexually oriented business license, the name, business location, legal description, business mailing address and phone number of the proposed sexually oriented business. (5) Written proof of age, in the form of either (i) a copy of a birth certificate and current photo, (ii) a current dri er's license with picture, or (iii) other picture identification document issued by a government '1 agency. (6) The issuing urisdiction and the effective dates of any license or permit held by the applicant relating to a s Dxually oriented business, and whether any such license or permit has been denied, revoked or suspended, and, if so, the reason or reasons therefor. (7) If the application is for a sexually oriented business license, the name and address of the statutory agent or other agent authorized to receive service of process. The information provided pursuant to Subsections (1) through (7) shall be supplemented in writing by certified mail, return receipt requested, or by personal delivery with return of service, to the Enforcement Officer within ten (10) working days of a change of circumstances which would render the information originally submitted false or incomplete. (d) The 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. (e) If the person who wishes to operate a sexually oriented business is an individual, he or she shall sign the application for a license as applicant. If the person who wishes to operate a sexually oriented business is other than an individual (such as a corporation, each officer, director, general partner or other person who will participate directly in decisions relating to management of the business shall sign the application for a license as the applicant. Each applicant must be qualified under Section 5.36.050, and each applicant shall be considered as a licensee if a license is granted. (f) A person who possesses a valid business license is not exempt from the requirement of obtaining any required sexually oriented business license. A person who operates a sexually oriented business and possesses a business license shall comply with the requirements and provisions of this Chapter, where applicable. Ordinance - Page 10 chubbuck042506.ordinancemiad (g) The information pr ded by an applicant in connection with the application for a license under this Chapter shall beiiaintained by the Enforcement Officer on a confidential basis, and may be disclosed only (1) to other governmental agencies in connection with a law enforcement or public safety function, or (2) as may otherwise be required by law or a court order. { (a) Upon the filing of a or a sexually oriented business eml Temporary License to the applicant decision of the Enforcement Office the receipt of a completed applicati issue a written notice of intent to di approve the issuance of a license uu ompleted application for a sexually oriented business license oyee license, the Enforcement Officer shall issue a which Temporary License shall expire upon the final to deny or grant the license. Within twenty (20) days after n, the Enforcement Officer shall either issue a license or ry a license to the applicant. The Enforcement Officer shall ess 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 is delinquent in the payment to the City of taxes, fees, fines or penalties assessed against or imposed upon the applicant in relation to a sexually oriented business: (3) An applicant has failed to provide information as required by Section 5.36.040 for issuance of the license. (4) An applicant has been convicted of a specified criminal activity. The fact that a conviction is being appealed shall have no effect under this Subsection. For the purpose of this Subsection, "conviction:" (A) means a conviction or a guilty plea; and (B)includes a conviction of any business entity for which the applicant had, at the time of the offense leading to the conviction for a specified criminal activity, a management responsibility or a controlling interest. (5) The license application fee required by the Chapter has not been paid. (6) An applicant has falsely answered a question or request for information on the application form. (7) The proposed sexually oriented business is located in a zoning district other than'a zone in which sexually oriented businesses are allowed to operate under Title 18, Chubbuck Municipal Code, or is not in compliance with the location restrictions established for sexually oriented businesses in the appropriate zoning district(s). (b) 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 that applicant, the expiration date and, if the license is for a sexually oriented business, the address of the sexually oriented business. A sexually oriented business employee license shall contain a photograph of the licensee. 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 for inspection upon request by a law enforcement officer or other authorized city official. Ordinance - Page 11 chubbuck042506.ordinancemiad Section 5.36.060 Fees. The non-refundable initial license fee and annual renewal fee for a sexually oriented business license or a sexually oriented business employee license shall be set by the City Council from time to time by resolution at an amount determined to be sufficient to pay the cost of administering this program. Section 5.36.070 inspection. (a) For the purpose of ensuring compliance with this Chapter, an applicant, operator or licensee shall permit law enforcement officers and any other federal, state, county or city agency in the performance of any function connected with the enforcement of this Chapter, normally and regularly conducted by such agencies, to inspect, at any time the business is occupied or open for business, those portions of the premises of a sexually oriented business which patrons or customers are permitted to occupy. (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 5.36.080 Expiration of License. (a) Each license shall expire on December 31 of the year of issuance and may be renewed only by making application as provided in Section 5.36.040. An application for renewal shall be made at least thirty (30) days before the expiration date, and when made less than thirty (30 days before the expiration date, the expiration of the license will not be affected. (b) When the City denies renewal of a license, the applicant shall not be issued a license for one (1) year from the date of denial. If, subsequent to the denial, the City finds that the basis for denial of the renewal license has been corrected or abated, the applicant shall be granted a license if at least ninety (90) days have elapsed since the date that the denial became final. Section 5.36.090 Suspension. The City shall issue a written intent to suspend a license for a period not to exceed thirty (30) days if it determines that a licensee or an employee of a licensee has: (a) violated or is not in compliance with any section of this Chapter; or (b) refused to allow an inspection of the sexually oriented business premises as authorized by this Chapter. Section 5.36.100 Revocation. (a) The Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license if a cause of suspension in Section 5.36.090 occurs and the license has been suspended within the preceding twelve (12) months. (b) The Enforcement Officer shall issue a written statement of intent to revoke a sexually oriented business license of the Officer determines that: (1) a licensee gave false or misleading information in the material submitted during the application process; Ordinance - Page 12 chubbuck042W6.ord1nance.wpd (2) a licensee has knowingly allowed possession, use or sale of controlled substances on the premises; (3) a licensee has knowingly allowed prostitution on the premises; (4) a licensee has knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; (5) a licensee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sex act to occur in or on the licensed premises. This Subsection will not apply to an adult motel, unless the licensee knowingly allowed sexual activities to occur either (i) in exchange for money or (ii) in a public place or within public view. (c) The fact that a conviction is being appealed shall have no effect on the revocation of the license. (d) When, after the notice and hearing procedure described in Section 5.36.110, the Enforcement Officer revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued a sexually oriented business license for one (1) year from the date revocation becomes effective, provided that if the conditions of Section 5.36.110(b) are met, a Provisional License will be granted pursuant to that Section. If, subsequent to revocation, the Enforcement Officer finds that the basis for the revocation found in Subsections (b)(1) and (b)(4) of this Section has been corrected or abated, the applicant shall be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. Section 5:36.110 Hearing; License Denial, Suspension, Revocation: Appeal (a) If the Enforcement Officer determines that facts exist for denial, suspension or revocation of a license under this Chapter, the Enforcement Officer shall notify the applicant or licensee (respondent) in writing of the intent to deny, suspend or revoke the license, including the groundstherefor, by personal delivery or by certified mail. The notification shall be directed to the most current business address on file with the Enforcement Officer. Within five (5) working days of receipt of such notice, the respondent may provide to the City Clerk, in writing, a response that shall include a statement of reasons why the license or permit should not be denied, suspended or revoked. Within three (3) days of the receipt of respondent's written response, the City Clerk shall notify respondent in writing of the hearing date on respondent's denial, suspension or revocation proceeding. Within thirty (30) working days of the receipt of respondent's written response, the City Council, or an independent hearing: officer appointed by the Council, shall conduct a hearing at which respondent shall have the opportunity to be represented by counsel and present evidence and witnesses on his or her behalf. i If a response is not received by the City in the time stated or, if after the hearing, the City Council finds that grounds as specified in this Chapter exist for denial, suspension or revocation, then such denial, suspension or revocation shall become final five (5) days after the City setids, by certified mail, written notice that the license has been denied, suspended or revoked. Such notice shall include a statement advising the applicant or licensee of the right to appeal such decision to a court o competent jurisdiction. If the City Council finds that no grounds exist for denial, suspension or revocation of a license, then within five (5) days after the hearing, the City Clerk shall withdraw the intent to deny, suspend or revoke the license, and shall so notify the respondent in writing by certified mail of such action and shall contetnporaneously issue the license. Ordinance - Page 13 chubbuck042506.ordinance.wpd i (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 such action to a court of competent jurisdiction. Upon the filing of any court action to appeal, challenge, restrain or otherwise enjoin the City's enforcement of the denial, suspension or revocation, the City shall immediately issue the aggrieved party a Provisional License. The Provisional License shall allow the aggrieved party to continue operation of the sexually oriented business or to continue employment as a sexually oriented business employee, as the case may be, and will expire upon the court's entry of a judgment on the aggrieved party's action to appeal, challenge, restrain or otherwise enjoin the City's enforcement. Section 5.36.120 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 application. Section 5.36.130 Location of Sexually Oriented Business. (a) A person commits a misdemeanor if that person operates or causes to be operated a sexually oriented business in any zone other than one zoned for an adult business as defined in Title 18, Chubbuck Municipal Code. (b) A person commits an offense if the person operates or causes to be operated a sexually oriented business withing 2,500 feet of: (1) A church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities; (2) A public or private educational facility, including, but not limited to, child daycare facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities. "School" includes the school grounds, but does not include facilities used primarily for another purposes and only incidentally as a school; (3) A public park or recreational area which has been designated for park or recreational activities, including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas or other similar public land within the City which is under the control, operation or management of the City park and recreation authorities; (4) An entertainment business which is oriented primarily towards children or family entertainment; or (5) Any premises licensed pursuant to the alcoholic beverage control regulations of the State. (c) A person commits a! misdemeanor if that person causes or permits the operation, establishment, substantial enlargement or transfer of ownership or control of a sexually oriented business within 1,000 feet of another sexually oriented business. Ordinance - Page 14 chubbuck042506.6rdinancempd (d) A person commits a establishment or maintenance of m structure or portion thereof, or the ii building, structure or portion thereo (e) For the purpose of § straight line, without regard to the ii the building or structure used as the conducted, to the nearest property li presence of a city, county or other p of calculating and applying the dish iisdemeanor if that person causes or permits the operation, e than one sexually oriented business in the same building, ;rease of floor area of any sexually oriented business in any containing another sexually oriented business. ibsection (b) of this Section, measurement shall be made in a itervening structures or objects, from the nearest portion of part of the premises where a sexually oriented business is ne of the premises of a use listed in Subsection (b). The Aitical subdivision boundary shall be irrelevant for purposes nce requirements of this Section. (f) For purposes of Subsection (c) of this Section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects or political boundaries, from the closest exterior wall of the structure in which each business is ;located. (g) Any sexually oriented business lawfully operating on June 1, 2006, that is in violation of Subsections (a) through (f) of this Section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed one (1) year, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is/are nonconforming. (h) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a use listed in Subsection (b) of this Section within 2,000 feet of the sexually oriented business. This provision applies only to the renewal of a valid license and does not apply when an application is made for a license after the applicant's previous license has expired or been revoked. I Section 5 36.140 Regulations Pertaining to Exhibitions of Sexually Explicit Films, Videos or (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, live entertainment or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements: (1) Upon application for a sexually oriented license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit, if granted, will be conspicuously posted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should 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 (6) inches. The City may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that Ordinance - Page 15 chubbuck042506.ordmance.wpd 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 may be made without the prior approval of the City. (4) It is the duty of the licensee of the premises to ensure that at least one (1) licensed employee is on duty and situated in each manager's station at all times that any patron is present inside the premises. (5) 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 to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. 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 Subsection must be by direct line of sight from the manager's station. (6) It shall be the duty of the licensee to ensure that the view area specified in Subsection (5) remainsunobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, 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 Subsection (1) of this Section. (7) No viewing room may be occupied by more than one (1) person at any time. (8) The 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 (5.0) foot-candles as measured at the floor level. (9) It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises. (10) No licensee shall allow openings of any kind to exist between viewing rooms or booths. (11) No person shall make or attempt to make an opening of any kind between viewing booths or rooms. (12) The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist. (13) The licensee shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting. (14) The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, nonporous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within forty-eight (48) inches of the floor. Ordinance - Page 16 chubbuck042506.ordinance.wpd 0 (b) A person having a duty under Subsections (1) through (14) of Subsection (a) herein commits'a misdemeanor if he or she knowingly fails to fulfill that duty. Section 5 36 150 Additional Regulations for Escort Agencies. (a) An escort agency shall not employ any person under the age of eighteen (18) years. (b) A person commits an offense if the person acts as an escort, or agrees to act as an escort, for any person under the age of eighteen (18) years. Section 5 36 160 Additional Regulations Concerning Public Nudity. (a) It shall be a misdemeanor for a person to knowingly and intentionally, in a sexually oriented business, appear in a state of nudity or engage in specified sexual activities. (b) It shall be a misdemeanor 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, is at least six (6) feet from any patron or customer and on a stage at least two (2) feet from the floor. (c) It shall be a misdemeanor for an employee, while semi-nude in a sexually oriented business, to receive directly any pay or gratuity from any patron or customer, or for any patron or customer to pay orgive any gratuity directly to any employee, while that employee is semi-nude in a sexually oriented business. (d) It shall be a misdemeanor for an employee, while semi-nude, to knowingly and intentionally touch a customer or the clothing of a customer. Section 5.36.170 Prohibition Against Children in a Sexually Oriented Business. A person commits a misdemeanor if the person knowingly allows a person under the age of eighteen (18) years on the premises of a sexually oriented business. Section 5.36.150 Hours of Operation. No sexually oriented business, except for an adult motel, may remain open at any time between the hours of one o'clock (1:00) AM and eight o'clock (8:00) AM on weekdays and Saturdays, and one o'clock (1:00) AM and noon (12:00) PM on Sundays. Section 5.36.1.90 Exemptions. It is a defense to prosecution under Section 5.36.160 that a person appearing in a state of nudity did so in a modeling class operated: (a) by a proprietary school, licensed by the State of Idaho; 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 a college, junior college or university supported entirely or partly by taxation; or (c) in a structure: Ordinance - Page 17 chubbuck042506.ordinance.wpd (1) which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and (2) where, in order to participate in a class, a student must enroll at least three (3) days in advance of the class; and (3) where no more than one (1) nude model is on the premises at any one time. Section 5.36.200 Injunction. A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of Section 5.36.120 if this Chapter is subject to a suit for injunction as well as prosecution for criminal violations. Such violations shall be punishable by a fine of two hundred dollars ($200) or thirty (30) days imprisonment, or both. Each day a sexually oriented business so operates is a separate offence or violation. ADMINISTRATIVE PROVISIONS Section 1. Repeal of Conflicting Ordinances. The provisions of any Ordinance of the City of Chubbuck, Idaho, and any provision of the Chubbuck Municipal Code which are in conflict with the provisions of this Ordinance are hereby repealed to the extent of such conflict. Section 2. Severability. If any provision of this ordinance is held invalid, for any reason, by any court of competent jurisdiction, such holding shall not affect the validity or enforceability of any of the remaining provisions.' Section 3. Effective Date. The rule requiring an ordinance to be read on three separate days, one of which shall be a reading in full, is hereby dispensed with, and this Ordinance shall become effective upon its passage, approval and publication as provided by law. PASSED BY THE COUNCIL AND APPROVED BY THE MAYOR OF THE CITY OF CHUBBUCK, IDAHO, this 27T day of JUNE , 2006. Yk. - VEN M. ENGLAND, WYOR ATTEST: ��— RON C. CONLIN, CITY CLERK Ordinance - Page 18 chubbuck042508.ord1nance.wpd