HomeMy WebLinkAbout0616 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
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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:
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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.
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(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.
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(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."
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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;
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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.
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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.
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(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.
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(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.
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(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.
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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;
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(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.
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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.
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(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
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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.
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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:
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(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
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