Chapter 5-105
SEXUALLY ORIENTED BUSINESSES
Sections:
5-105-040 Regulations pertaining to exhibition of sexually explicit films or videos in video booths.
5-105-050 Prohibitions regarding minors and sexually oriented businesses.
5-105-060 Advertising regulations.
5-105-080 Nudity at sexually oriented businesses.
5-105-100 Penalties and additional legal, equitable and injunctive relief.
5-105-110 Immunity from prosecution.
5-105-120 Prohibition of distribution of sexual devices.
5-105-130 Conduct of dancers and patrons.
5-105-150 Performance location.
Prior legislation: Ord. 3105.
5-105-010 Purpose and intent.
It is the purpose and intent of this chapter to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the city and to establish reasonable and uniform regulations thereby reducing or eliminating the adverse secondary effects from such sexually oriented businesses. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene materials. (Ord. 3111 § 1, 2003)
5-105-020 Definitions.
For the purposes of this chapter, certain terms and words are defined as follows:
A. “Sexually oriented businesses” are those businesses defined as follows:
1. “Adult arcade” means an establishment where, for any form of consideration, one (1) or more still or motion picture projectors, slide projectors, or similar machines, or other image-producing machines, for viewing by five (5) or fewer persons each are regularly used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified anatomical areas.”
2. “Adult bookstore,” “adult novelty store” or “adult video store” means a commercial establishment which has over twenty-five (25) percent of its stock-in-trade or derives over twenty-five (25) percent of its revenues or devotes over twenty-five (25) percent of its interior business or advertising to the sale, rental for any form of consideration, of any one (1) or more of the following:
a. Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations which are characterized by the depiction or description of “specified anatomical areas”;
b. Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.
3. “Adult cabaret” means a nightclub, bar, restaurant, or similar commercial establishment, whether or not alcoholic beverages are served, which regularly feature (a) persons who appear semi-nude or in a state of semi-nudity; (b) pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified anatomical areas.”
4. “Adult motel” means a motel, hotel or similar commercial establishment which: (a) offers public accommodations, for any form of consideration, which provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of “specified anatomical areas” and which advertises the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television; or (b) offers a sleeping room for rent for a period of time less than ten (10) hours; or (c) allows a tenant or occupant to sub-rent the sleeping room for a time period of less than ten (10) hours.
5. “Adult motion picture theater” means a commercial establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions which are characterized by the depiction or description of “specified anatomical areas” are regularly shown for any form of consideration.
6. “Adult theater” means a theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of semi-nudity.
7. “Escort” means a person who, for any form of consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie for another person.
8. “Escort agency” means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one (1) of its primary business purposes for a fee, tip, or other consideration.
9. “Massage parlor” means any place where, for any form of consideration or gratuity, massages, alcohol rubs, administration of fomentations, electric or magnetic treatments, or any other treatment manipulation of the human body occurs. The definition of “sexually oriented businesses” shall not include the practice of massage in any licensed hospital, nor by a licensed hospital, nor any licensed physician, surgeon, chiropractor or osteopath, nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, nor by trainers for any amateur, semiprofessional or professional athlete or athletic team or school athletic program.
10. “Semi-nude model studio” means any place where a person who regularly appears in a state of semi-nudity is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.
11. “Sexual encounter establishment” means a business or commercial establishment that, as one (1) of its primary business purposes, offers for any form of consideration a place where two (2) or more persons may congregate, associate, or consort when one (1) or more of the persons is semi-nude. The definition of “sexually oriented businesses” shall not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.
B. “Dancer or performer” means a person who dances or otherwise performs in an adult cabaret or adult theater.
C. “Employee” means any person who works or performs in and/or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage or other compensation by the operator of said business.
D. The “establishment” means and includes any of the following:
1. The opening or commencement of any such business as a new business;
2. The conversion of an existing business, whether or not a sexually oriented business, to any of the sexually oriented businesses defined in this chapter;
3. The addition of any of the sexually oriented businesses defined in this chapter to any other existing sexually oriented business; or
4. The relocation of any such sexually oriented business.
E. “Knowingly” means that the person is aware that their conduct or actions are of such a nature to create a substantial probability that a prohibited result will occur from their conduct or actions.
F. “Nudity or state of nudity” means: (a) the appearance of human bare buttocks, anus, male genitals, female genitals, or the areola or nipple of the female breast; or (b) a state of dress which fails to opaquely and fully cover a human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast.
G. “Opaquely” means clothing not so fine in texture as to be capable of being seen through.
H. “Operator” means and includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises.
I. “Person” means an individual, proprietorship, partnership, corporation, association, or other legal entity.
J. “Sexually oriented business” means an adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, massage parlor, sexual encounter establishment, escort agency or semi-nude model studio.
K. “Specified anatomical areas,” as used in this chapter, means and includes any of the following:
1. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areolae;
2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
3. Masturbation, actual or simulated;
4. Human genitals in a state of sexual stimulation, arousal or tumescence; or
5. Excretory functions as part of or in connection with any of the activities set forth in subsections (K)(1) through (4) of this section.
L. “Semi-nude” or “semi-nudity” means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.
M. “Substantial enlargement of the sexually oriented business” means increase in the floor areas occupied by the business by more than fifteen (15) percent, as the floor areas exist on the date of passage of the ordinance codified in this chapter.
N. “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;
3. The establishment of a trust, gift or other similar legal devise which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control. (Ord. 3111 § 2, 2003)
5-105-030 Inspection.
A. An applicant or permittee shall permit representatives of the code enforcement officer, the county health department, the police department and the fire department to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is occupied or open for business.
B. It shall be unlawful for a person who operates a sexually oriented business, or his/her agent or employee, to refuse to permit such lawful inspection of the premises at any time that it is occupied or open for business. If such a refusal occurs, it shall be a violation of this chapter. Said violation is punishable by fine from one hundred dollars ($100.00) to five hundred dollars ($500.00) for each and every day said operator refuses to allow said inspection. The city, at its discretion, may petition any court with jurisdiction to compel the operator to allow the inspection. In addition, the refusal of the operator to comply with this provision shall be grounds for the suspension or revocation of his or her business license. (Ord. 3111 § 3, 2003)
5-105-040 Regulations pertaining to exhibition of sexually explicit films or videos in video booths.
A. A person who operates or causes to be operated a sexually oriented business, other than a sexually oriented motel/hotel which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette or other video reproduction which depicts specified anatomical areas, shall comply with the following requirements:
1. It is the duty of the owners and operator of the premises to ensure that at least one (1) employee is on duty and situated at each manager’s station at all times that any patron is present inside the premises.
2. 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 have two 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 (1) of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
3. It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present on the premises, to ensure that the view area specified in subsection (A)(2) of this section remains unobstructed by any doors, walls, merchandise, display racks or other materials or person at all times and 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.
4. No viewing room may be occupied by more than one (1) person at any one (1) time. No holes, commonly known as “glory holes,” shall be permitted in the walls or partition separating each viewing room from an adjoining viewing room, restroom or any other room on the premises. No door may be attached or installed on any viewing room.
5. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access and an illumination of not less than two (2) foot-candles as measured at the floor level.
6. It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present on the premises to ensure that the illumination described above is maintained at all times that any patron is present on the premises.
B. A person having a duty under subsections (A)(1) through (6) of this section commits a violation of this chapter if he/she knowingly fails to fulfill that duty. (Ord. 3111 § 4, 2003)
5-105-050 Prohibitions regarding minors and sexually oriented businesses.
A person commits a violation of this chapter if he/she operates or causes to be operated a sexually oriented business and knowingly, or with reasonable cause to know, permits, suffers, or allows:
A. Admittance of a person under twenty-one (21) years of age to the business premises if the business serves alcoholic beverages; or under the age of eighteen (18) if no alcohol is served, unless accompanied by a parent or guardian;
B. A person under twenty-one (21) years of age to remain at the business premises if the business serves alcoholic beverages; or under the age of eighteen (18) if no alcohol is served, unless accompanied by a parent or guardian;
C. A person under twenty-one (21) years of age to purchase goods or services at the business premises if the business serves alcoholic beverages; or under the age of eighteen (18) if no alcohol is served, without the specific consent of a parent or guardian; or
D. A person who is under twenty-one (21) years of age to work at the business premises as an employee if the business serves alcoholic beverages, or under the age of eighteen (18) if no alcohol is served. (Ord. 3111 § 5, 2003)
5-105-060 Advertising regulations.
A. It shall be unlawful and a person commits a violation of this chapter if he/she operates or causes to be operated a sexually oriented business and advertises the presentation of any activity prohibited by any applicable state statute or local ordinance.
B. It shall be unlawful and a person commits a violation of this chapter if he/she operates or causes to be operated a sexually oriented business and displays or otherwise exhibits the materials and/or performances at such sexually oriented business in any advertising which is visible outside the premises. This prohibition shall not extend to advertising of the existence or location of such sexually oriented business.
C. The permittee shall not allow any portion of the interior premises to be visible from outside the premises.
D. All off-street parking areas and premises entries of the sexually oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one (1) foot-candle of light on the parking surface and/or walkways. This required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the sexually oriented business for the personal safety of the sexually oriented businesses, patrons and employees, and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premises. (Ord. 3111 § 6, 2003)
5-105-070 Hours of operation.
A. It shall be unlawful and a person commits a violation if he/she operates or causes to be operated a sexually oriented business and allows such business to remain open for business, or to permit any employee to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of one a.m. and nine a.m. of any particular day.
B. It shall be unlawful and a person commits a violation if, working as an employee of a sexually oriented business, said employee engages in a performance, solicits a performance, makes a sale, solicits a sale, provides a service, or solicits a service between the hours of one a.m. and nine a.m. of any particular day. (Ord. 3111 § 7, 2003)
5-105-080 Nudity at sexually oriented businesses.
The United States Supreme Court decision in Barnes v. Glen Theater Inc., 501 U.S. 560, 111 S. Ct. 2456, (June 21, 1991) which upheld the rights of cities to prohibit live public exposure of a person’s private parts, specifically applies to sexually oriented businesses including said businesses where no alcoholic beverages are sold, served, or consumed at the premises.
Live nudity is prohibited in the city of Harvey within any sexually oriented business. (Ord. 3111 § 8, 2003)
5-105-090 Exemptions.
A. It is a defense to prosecution for any violation of this chapter that a person appearing in a state of nudity did so in a modeling class operated:
1. By a college, junior college, or university supported entirely or partly by taxation;
2. 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
3. In a structure:
a. 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
b. Where, in order to participate in a class a student must enroll at least three (3) days in advance of the class; and
c. Where no more than one (1) nude model is on the premises at any time.
B. It is a defense to prosecution for a violation of this chapter that an employee of a sexually oriented business exposed any specified anatomical area during the employee’s bona fide use of a restroom, or during the employee’s bona fide use of a dressing room which is accessible only to employees. (Ord. 3111 § 9, 2003)
5-105-100 Penalties and additional legal, equitable and injunctive relief.
In addition to whatever penalties arc applicable under the state of Illinois Criminal Code, if any person fails or refuses to obey or comply with or violates any of the provisions of this chapter, such person, upon conviction of such offense, shall be guilty of a violation and shall be punished by a fine not to exceed five hundred dollars ($500.00), in the discretion of the court. Each violation or noncompliance shall be considered a separate and distinct offense. Further, each day of continued violation or noncompliance shall be considered as a separate offense.
Nothing herein contained shall prevent or restrict the city from taking such other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or noncompliance. Such other lawful actions shall include, but shall not be limited to, an equitable action for injunctive relief or an action at law for damages.
Further, nothing in this section shall be construed to prohibit the city from prosecuting any violation of this chapter by means of a code enforcement board established pursuant to the authority as provided by the laws of the state of Illinois.
All remedies and penalties provided for in this section shall be cumulative and independently available to the city and the city shall be authorized to pursue any and all remedies set forth in this section to the full extent allowed by law. (Ord. 3111 § 10, 2003)
5-105-110 Immunity from prosecution.
The city and its designee, the city of Harvey police department and all other departments and agencies, and all other city officers, agents and employees, charged with enforcement of state and local laws and codes shall be immune from prosecution, civil or criminal, for reasonable, good faith trespass upon a sexually oriented business while acting within the scope of authority conferred by this chapter. (Ord. 3111 § 11, 2003)
5-105-120 Prohibition of distribution of sexual devices.
A. It is unlawful for anyone to distribute, for commercial purposes, sell or offer for sale any device, instrument or paraphernalia designed or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of themselves or others.
B. Such devices, instruments or paraphernalia include but are not limited to: phallic shaped vibrators, dildos, muzzles, whips, chains, bather restraints, racks, nonmedical enema kits, body piercing implements (excluding earrings or other decorative jewelry) or other tools of sadomasochistic abuse.
C. A violation of this section is a violation punishable by a fine of up to five hundred dollars ($500.00). (Ord. 3111 § 12, 2003)
5-105-130 Conduct of dancers and patrons.
A. An employee of an adult cabaret or theater, while dancing or performing in a state of semi-nudity within said establishment or on its property, commits a violation of this chapter if she or he touches a customer or the clothing of a customer while performing or dancing, or performs or dances from a distance in violation of Section 5-105-150 of this code, or dances or performs in a state of nudity.
B. A customer at an adult cabaret or theater commits an offense if he or she touches an employee appearing in a state of nudity or semi-nudity. (Ord. 3111 § 13, 2003)
5-105-140 Payment or tips.
No patron shall directly pay for any service or dance, or give any gratuity/tips to any dancer or performer and no dancer shall solicit from any payer payments or gratuity/tips from any patron of any sexually orientated businesses. Any tips or gratuities for dancers or performers of any sexually orientated businesses must be placed in a designated box within the facility not located on the dancing or performing stage or in violation of the distance requirements stated in Section 5-105-150 of this code. (Ord. 3111 § 14, 2003)
5-105-150 Performance location.
Any dancing or performance must be on a designated fixed or immovable stage elevated at least two (2) feet from the floor and the audience members may not be seated within five (5) feet of the edge of a stage or go onto a stage. Any performance or dance commonly known as a “lap dance” is prohibited. (Ord. 3111 § 15, 2003)