CHAPTER 111
SEXUALLY ORIENTED BUSINESSES
Section
111.04 Investigation and application
111.11 Judicial review of permit denial, suspension or revocation
111.13 Sexually oriented business employee license
111.14 Regulations pertaining to exhibition of sexually explicit films or videos in video booths
111.15 Prohibitions regarding minors and sexually oriented businesses
111.16 Advertising and lighting regulations
111.18 Nudity at sexually oriented businesses prohibited
111.19 Regulations pertaining to live entertainment
111.21 Prohibition of distribution of sexual devices
111.01 PURPOSE AND INTENT.
It is the purpose 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 to prevent deleterious effects of sexually oriented businesses within the city. 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 to the United States Constitution or the Indiana State Constitution, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent or effect of this chapter to in any way condone or legitimize the distribution of obscene or material harmful to minors.
(1994 Code, § 111.01) (Ord. 2001-1789, passed 6-11-2001)
111.02 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
EMPLOYEE. A 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.
ESTABLISHMENT. 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, regardless of whether it currently exists as 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.
NUDITY or STATE OF NUDITY:
(1) The appearance of human bare buttock, anus, male or female genitals, or the areola or nipple of the female breast; or
(2) A state of dress which fails to opaquely and fully cover human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast.
OPERATOR. Includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises.
PERMITTED OR LICENSED PREMISES. Any premises that requires a license and/or permit and that is classified as a sexually oriented business.
PERMITTEE and/or LICENSEE. A person in whose name a permit and/or license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.
PERSON. An individual, proprietorship, partnership, corporation, association, limited liability company or other legal entity.
PUBLIC BUILDING. Any building owned, leased or held by the United States, the state, the county, the city, any special district, school district, or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes.
PUBLIC PARK or RECREATION AREA. Public land 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, open space, wilderness areas, or similar public land within the city which is under the control, operation, or management of the city park and recreation authorities.
RELIGIOUS INSTITUTION. Any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.
RESIDENTIAL DISTRICT OR USE. A single family, duplex, townhouse, multiple family, or mobile home park or subdivision as defined in the zoning ordinance.
SCHOOL. Any public or private educational facility, including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, colleges and universities. SCHOOL includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school.
SEMI-NUDE. A state of dress in which clothing covers no more than the genitals, pubic region, and areola of the female breast, as well as portions of the body covered by supporting straps or devices.
SEXUALLY ORIENTED BUSINESSES. Those businesses defined as follows.
ADULT ARCADE. An establishment where, for any form of consideration, 1 or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines, for viewing by 5 or fewer persons each, are regularly used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas.
ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. A commercial establishment which has as a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising to the sale or rental, for any form of consideration, of any 1 or more of the following:
(1) Books, magazines, periodicals or other printed matter, or photographs; films, motion pictures, video cassettes, slides, or other visual representations which are characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas;
(2) 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 their users;
(3) An establishment may have other principal business purposes that do not involve the offering for sale, rental or viewing of materials emphasizing the depicting or describing specified sexual activities or specified anatomical areas, and still be categorized as an ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. Such other business purposes will not serve to exempt such establishments from being categorized as an ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE so long as 1 of its principal business purposes is offering for sale or rental, for some form of consideration, the specified materials which emphasize the depiction or description of specified sexual activities and specified anatomical areas.
ADULT CABARET. A nightclub, bar, restaurant, bottle club, or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features:
(1) Persons who appear nude or in a state of nudity or semi-nude;
(2) Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
(3) Films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
ADULT MOTEL. A motel, hotel or similar commercial establishment which:
(1) 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 an emphasis on the depiction or description of specified sexual activities or 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
(2) Offers a sleeping room for rent for a period of time less than 10 hours; or
(3) Allows a tenant or occupant to sub-rent the sleeping room for a time period of less than 10 hours.
ADULT MOTION PICTURE THEATER. A commercial establishment where films, motion pictures, video cassettes, slides or similar photographic reproductions which are characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas are regularly shown for any form of consideration.
ADULT THEATER. A theater, concert hall, auditorium, or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by exposure of specified anatomical areas or by specified sexual activities.
ESCORT. 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 or to privately perform a striptease for another person.
ESCORT AGENCY. A person or business association who furnishes, offers to furnish, or advertises to furnish escorts as 1 of its primary business purposes for a fee, tip, or other consideration.
MASSAGE PARLOR. Any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment or manipulation of the human body which occurs as a part of or in connection with specified sexual activities, or where any person providing such treatment, manipulation, or service related thereto, exposes his or her specified anatomical areas. Sexually oriented businesses shall not include the practice of massage in or by any licensed hospital; nor by a 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.
NUDE MODEL STUDIO. Any place where a person, who regularly appears in a state of nudity or displays specified anatomical areas for money or any form of consideration and is to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.
SEXUAL ENCOUNTER ESTABLISHMENT. A business or commercial establishment that, as 1 of its primary business purposes offers for any form of consideration a place where 2 or more persons may congregate, associate, or consort for the purpose of engaging in specified sexual activities or the exposure of specified anatomical areas or activities when 1 or more of the persons is in a state of nudity or semi-nude. 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.
SPECIFIED ANATOMICAL AREAS. 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 areola; or
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
SPECIFIED CRIMINAL ACTS. Acts which are sexual crimes against children, sexual abuse, rape, or crimes connected with another sexually oriented business, including, but not limited to, distribution of obscenity or material harmful to minors, prostitution, pandering, or tax violations.
SPECIFIED SEXUAL ACTIVITIES. Includes any of the following:
(1) Sex acts, normal or perverted, including intercourse, oral copulation, sodomy, or bestiality;
(2) Masturbation;
(3) Human genitals in a state of sexual stimulation, arousal or tumescence;
(4) Excretory functions as part of or in connection with any of the activities set forth in subdivisions (1) through (3) of this subsection.
SUBSTANTIAL ENLARGEMENT OF A SEXUALLY ORIENTED BUSINESS. Increase in the floor areas occupied by the business by more than 15%, as the floor areas exist on the date this chapter takes effect.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS. 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.
(1994 Code, § 111.02) (Ord. 2001-1789, passed 6-11-2001)
111.03 PERMIT REQUIRED.
(A) No person shall conduct, maintain, operate, or cause to be conducted, maintained, or operated, any sexually oriented business within the corporate limits of the city without first being licensed under this chapter.
(B) The Board of Public Works and Safety, or its designee, is responsible for granting, denying, revoking, renewing, suspending, and canceling sexually oriented business permits for proposed or existing sexually oriented businesses. The Board of Public Works and Safety, or its designee, is also responsible for ascertaining whether a proposed sexually oriented business for which a permit is being applied complies with all applicable zoning laws and/or regulations now in effect or as amended or enacted subsequent to the effective date of this chapter in the city and the city’s Comprehensive Plan.
(C) The Police Department shall be responsible for providing information on whether an applicant has been convicted of a specified criminal act during the time period set forth.
(D) The Code Enforcement Department shall be responsible for inspecting a proposed, permitted or non-permitted sexually oriented business in order to ascertain whether it is in compliance with applicable statutes and ordinances.
(E) An application for a permit must be made on a form provided by the Board of Public Works and Safety. Any person desiring to operate a sexually oriented business shall file with the city an original and 2 copies of a sworn permit application on the standard application form supplied by the Board of Public Works and Safety or its designee.
(F) The completed application shall contain the following information and shall be accompanied by the following documents.
(1) If the applicant is:
(a) An individual. The individual shall state his legal name and any aliases and submit satisfactory proof that he is 18 years of age;
(b) A partnership. The partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any;
(c) A corporation. The corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of the State of Indiana, the names and capacity of all officers, directors and principal stockholders, and the name of the registered corporate agent and the address of the registered office for service of process.
(2) If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, he must state:
(a) The sexually oriented business’s fictitious name; and
(b) Submit the required Indiana registration documents.
(3) Whether the applicant or any other individual listed in the application holds any other permits and/or licenses under this chapter or other similar sexually oriented business ordinance from another city, county, or state and, if so, the names and locations of such other permitted businesses.
(4) The single classification of permit for which the applicant is filing.
(5) The location of the proposed sexually oriented business, including a legal description of the property, street address, and telephone number(s), if any.
(6) The applicant’s mailing address.
(7) 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 it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus 6 inches.
(8) A current certificate and straight-line drawing prepared within 30 days prior to application by a State of Indiana registered land surveyor depicting the property lines and the structures containing any established existing uses regulated by this chapter within 1,000 feet of the property to be certified; the property lines of any established religious institution synagogue, school, or public park or recreation area within 1,000 feet of the property to be certified; and the property lines of any residentially zoned area or residential property within 1,000 feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted.
(9) If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a permit as applicant. If a person wishes to operate a sexually oriented business collectively with a group of individuals, each individual who has a 10% or greater interest in the business must sign the application for a permit as applicant. If a corporation is listed as owner of a sexually oriented business or as the entity that wishes to operate such a business, each individual having a 10% or greater interest in the corporation must sign the application for a permit as applicant. A corporation’s application must also be signed by the officer (or officers) whose signature is necessary to bind that corporation.
(10) If a person wishes to operate a sexually oriented business which shall exhibit on the premises films, video cassettes, or other video reproductions which depict specified sexual activities or specified anatomical areas, then said person shall comply with the application requirements stated at § 111.14.
(G) Applicants for a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event that said information changes in any way from what is stated on the application. The failure to comply with said continuing duty within 30 days from the date of such change shall be grounds for suspension of a permit.
(H) In the event that the Board of Public Works and Safety or its designee determines or learns at any time that the applicant has improperly completed the application for a proposed sexually oriented business, he shall promptly notify the applicant of such fact and allow the applicant 10 days to properly complete the application. (The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.)
(I) The applicant must be qualified according to the provisions of this chapter and the premises must be inspected and found to be in compliance with health, fire and building codes and laws.
(J) The applicant shall be required to pay a non-refundable application fee of $200 at the time of filing an application under this section.
(K) Prior to obtaining any permit or license to operate any sexually oriented business defined in this chapter, and as part of any application for a permit under this section, the applicant shall obtain from the Board of Public Works and Safety or its designee a certification that the proposed location of such business complies with the zoning ordinance.
(L) The fact that a person possesses other types of state or city permits and/or licenses does not exempt him from the requirement of obtaining a sexually oriented business permit.
(M) By applying for a permit under this chapter, the applicant shall be deemed to have consented to the provisions of this chapter and to the exercise by the Board of Public Works and Safety or its designee, the Police Department and all other city agencies charged with enforcing the laws, ordinances and codes applicable in the city of their respective responsibilities under this chapter.
(N) The applicant shall be required to provide the city with the names of any and all employees who are required to be licensed pursuant to § 111.13. This shall be a continuing requirement even after a permit is granted or renewed.
(1994 Code, § 111.03) (Ord. 2001-1789, passed 6-11-2001)
111.04 INVESTIGATION AND APPLICATION.
(A) Upon receipt of an application properly filed with the city and upon payment of the non-refundable application fee, the Clerk-Treasurer shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to the Police Department and any other city agencies responsible for enforcement of health, fire and building codes and laws. Each department or agency shall promptly conduct an investigation of the applicant, application and the proposed sexually oriented business in accordance with its responsibilities under law and as set forth in this chapter. Said investigation shall be completed within 20 days of receipt of the application by the Clerk-Treasurer. At the conclusion of its investigation, each department or agency shall indicate on the photocopy of the application its approval or disapproval of the application, date it, sign it, and, in the event it disapproves, state the reasons. The Police Department shall only be required to certify the NCIC records request check mentioned at § 111.05. The Police Department shall not be required to approve or disapprove applications.
(B) A department or agency shall disapprove an application if it finds that the proposed sexually oriented business will be in violation of any provision of any statute, code, ordinance, regulation or other law in effect in the city. After its indication of approval or disapproval, each department or agency shall immediately return the photocopy of the application to the City Controller who shall forward the application and any accompanying materials to the Mishawaka Board of Public Works and Safety for consideration.
(1994 Code, § 111.04) (Ord. 2001-1789, passed 6-11-2001)
111.05 ISSUANCE OF PERMIT.
(A) Time of decision. The Board of Public Works and Safety or its designee shall grant or deny an application for a permit within 30 days from the date of its proper filing. Upon the expiration of the thirtieth day, unless the applicant requests and is granted a reasonable extension of time, the applicant shall be permitted to begin operating the business for which the permit is sought, unless and until the Board of Public Works and Safety or its designee notifies the applicant of a denial of the application and states the reasons(s) for that denial.
(B) Grant of application for permit.
(1) The Board of Public Works and Safety or its designee shall grant the application unless 1 or more of the criteria set forth in subsection (C) below is present.
(2) The permit, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The permit shall also indicate that the sexually oriented business shall be subject to prohibitions against public nudity and indecency pursuant to the I.C. 35-45-4-1. The permit shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it can be read easily at any time.
(C) Denial of application for permit.
(1) The Board of Public Works and Safety or its designee shall deny the application for any of the following reasons:
(a) An applicant is under 18 years of age;
(b) An applicant has failed to provide information required by this section or permit application for the issuance of the permit or has falsely answered a question or request for information on the application form;
(c) The premises to be used for the sexually oriented business have not been approved as being in compliance with health, fire and building codes by the department or agency responsible under law for investigating said compliance;
(d) The application or permit fees required by this chapter have not been paid;
(e) An applicant of the proposed business is in violation of, or is not in compliance with, any of the provisions of this chapter or the zoning ordinance;
(f) The granting of the application would violate a statute, ordinance, or court order;
(g) The applicant has a permit under this chapter that has been suspended or revoked;
(h) An applicant knowingly has in his or her employ, an employee who does not have a valid license as required in § 111.13;
(2) If the Board of Public Works and Safety or its designee, denies the application, he shall notify the applicant of the denial and state the reason(s) for the denial.
(3) If a person applies for a permit for a particular location within a period of 12 months from the date of denial of a previous application for a permit at the location, and there has not been an intervening change in circumstances which could reasonably be expected to lead to a different decision regarding the former reasons for denial, the application shall be denied.
(1994 Code, § 111.05) (Ord. 2001-1789, passed 6-11-2001)
111.06 ANNUAL PERMIT FEE.
The annual fee for a sexually oriented business permit is $200.
(1994 Code, § 111.06) (Ord. 2001-1789, passed 6-11-2001)
111.07 INSPECTION.
(A) An applicant or permittee shall permit representatives of the city and Marshall County to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law at any time it is occupied or open for business.
(B) A person who refuses to permit any such inspection of the premises at any time that it is occupied or open for business shall be in violation of this chapter.
(1994 Code, § 111.07) (Ord. 2001-1789, passed 6-11-2001)
111.08 EXPIRATION OF PERMIT.
(A) Each permit shall expire 1 year from the date of issuance and may be renewed only by making application as provided in § 111.05 (for renewals, filing of original survey shall be sufficient). Application for renewal shall be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the permit will not be affected.
(B) When the Board of Public Works and Safety or its designee denies renewal of the permit, the applicant shall not be issued a permit under this chapter for 1 year from the date of denial. If, subsequent to denial, the Board of Public Works and Safety or its designee finds that the basis for denial of the renewal of the permit has been corrected, the applicant shall be granted a permit if at least 90 days have elapsed since the date denial became final.
(1994 Code, § 111.08) (Ord. 2001-1789, passed 6-11-2001)
111.09 SUSPENSION OF PERMIT.
(A) The Board of Public Works and Safety or its designee shall suspend a permit for a period not to exceed 30 days if he determines that a permittee, or an employee of a permittee, has:
(1) Violated or is not in compliance with any section of this chapter; or
(2) Been under the influence of alcoholic beverages or any controlled substances while working in the sexually oriented business premises; or
(3) Refused to allow an inspection of sexually oriented business premises as authorized by this chapter; or
(4) Knowingly permitted gambling by any person on the sexually oriented business premises;
(5) Operated the sexually oriented business in violation of a building, fire, health, or zoning statute, code, ordinance or regulation, whether federal, state or local, said determination being based on investigation by the division, department or agency charged with enforcing said rules or laws. In the event of such statute, code, ordinance or regulation violation, the Board of Public Works and Safety or its designee shall promptly notify the permittee of the violation and shall allow the permittee a 7-day period in which to correct the violation. If the permittee fails to correct the violation before the expiration of the 7-day period, the Board of Public Works and Safety or its designee shall forthwith suspend the permit and shall notify the permittee of the suspension;
(6) Operated the sexually oriented business in violation of the hours of operation set forth in § 111.17;
(7) Knowingly employs a person who does not have a valid license as required in § 111.13.
(B) The suspension shall remain in effect until the violation of the statute, code, ordinance or regulation in question has been corrected.
(1994 Code, § 111.09) (Ord. 2001-1789, passed 6-11-2001)
111.10 REVOCATION OF PERMIT.
(A) The Board of Public Works and Safety or its designee shall revoke a permit if a cause of suspension set forth in § 111.09 occurs and the permit has been suspended within the preceding 12 months.
(B) The Board of Public Works and Safety or its designee shall revoke a permit upon determining that:
(1) A permittee gave false or misleading information in the material submitted during the application process that tended to enhance the applicant’s opportunity for obtaining a permit; or
(2) A permittee or an employee has knowingly allowed possession, use or sale of controlled substances in or on the premises; or
(3) A permittee or an employee has knowingly allowed prostitution on the premises; or
(4) A permittee or an employee knowingly operated the sexually oriented business during a period of time when the permittee’s permit was suspended; or
(5) A permittee has been convicted of a specified criminal act for an act occurring during the time he held a permit hereunder; or on 2 or more occasions within a 12-month period, a person or persons committed an offense, occurring in or on the permitted premises, constituting a specified criminal act for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed. The fact that a conviction is being appealed shall have no effect on the revocation of the permit; or
(6) A permittee is convicted of tax violations for any taxes or fees related to a sexually oriented business; or
(7) A permittee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or any other specified sexual activities to occur in or on the permitted premises; or
(8) A permittee has been operating more than 1 sexually oriented business under a single roof; or
(9) A permittee has engaged in or attempted to engage in a transfer of permit in violation of § 111.12.
(C) When the Board of Public Works and Safety, or its designee, revokes a permit, the revocation shall continue for 1 year and the permittee shall not be issued a sexually oriented business permit for 1 year from the date revocation became effective. If, subsequent to revocation, the Board of Public Works and Safety or its designee finds that the basis for revocation under § 111.10 has been corrected, the applicant shall be granted a permit if at least 90 days have elapsed since the date revocation became effective. If the permit was revoked under § 111.10, an applicant may not be granted another permit until the number of years required under § 111.10 have elapsed.
(1994 Code, § 111.10) (Ord. 2001-1789, passed 6-11-2001)
111.11 JUDICIAL REVIEW OF PERMIT DENIAL, SUSPENSION OR REVOCATION.
After denial of an application, or denial of a renewal of an application, or suspension or revocation of a permit, the applicant or permittee may seek judicial review of the administrative action in Marshall Superior or Circuit Court.
(1994 Code, § 111.11) (Ord, 2001-1789, passed 6-11-2001)
111.12 TRANSFER OF PERMIT.
(A) A permittee shall not operate a sexually oriented business under the authority of a permit at any place other than the address designated in the application for permit.
(B) A permittee shall not transfer his permit to another person.
(C) A permittee shall not transfer his permit to another location.
(D) Any attempt to transfer a permit either directly or indirectly in violation of this section is hereby declared void and the permit shall be deemed revoked.
(1994 Code, § 111.12) (Ord. 2001-1789, passed 6-11-2001)
111.13 SEXUALLY ORIENTED BUSINESS EMPLOYEE LICENSE.
(A) Each individual to be employed in a sexually oriented business, as defined in § 111.02, who engages in the services rendered by a nude model studio, escort or escort agency, sexual encounter establishment, massage parlor (except for massage parlors licensed pursuant to municipal ordinance), or a live performer or entertainer shall be required to obtain a sexually oriented business employee license. Each applicant shall pay a permit fee of $25. The fee is to cover reasonable administrative costs of the licensing application process.
(B) Before any applicant may be issued a sexually oriented business employee license, the applicant shall submit on a form to be provided by the Board of Public Works and Safety or its designee the following information:
(1) The applicant’s name or any other names (including stage names) or aliases used by the individual;
(2) Age, date, and place of birth;
(3) Height, weight, hair and eye color;
(4) Present business address and telephone number;
(5) Acceptable written proof that the individual is at least 18 years of age;
(6) A statement detailing the sexually oriented business license or permit history of the applicant for the 5 years immediately preceding the date of the filing of the application, including whether such applicant previously operating or seeking to operate, in this or any other county, city, state, or country has ever had a sexually oriented business license, permit, or authorization to do business denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the date, the name of the issuing or denying jurisdiction, and describe in full the reasons for the denial, revocation, or suspension. A copy of any order of denial, revocation, or suspension shall be attached to the application;
(7) The Board of Public Works and Safety designee shall refer the sexually oriented business employee license application to the Police Department for an investigation to be made of such information as is contained on the application. The application process shall be completed within 10 days from the date the completed application is filed. After the investigation, the Board of Public Works and Safety or its designee shall issue a license unless the report from the Police Department finds that 1 or more of the following findings is true:
(a) That the applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a license or in any report or record required to be filed with the sheriff’s department or other department of the city;
(b) That the applicant is under 18 years of age;
(c) That the sexually oriented business employee license is to be used for employment in a business prohibited by local or state law, statute, rule or regulation, or prohibited by particular provisions of this chapter.
(C) Renewal of license:
(1) A license granted pursuant to this section shall be subject to annual renewal by the Board of Public Works and Safety or its designee upon the written application of the applicant and a finding by the Board of Public Works and Safety or its designee, and the Police Department that the applicant has not been convicted of any specified criminal act while operating under the license of which it seeks renewal or committed any act during the existence of the previous license period which would be grounds to deny the initial permit application;
(2) The renewal of the license shall be the same as the initial application fee.
(1994 Code, § 111.13) (Ord. 2001-1789, passed 6-11-2001)
111.14 REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS IN VIDEO BOOTHS.
A person who operates or causes to be operated a sexually oriented business, other than a sexually oriented motel/hotel, regardless of whether or not a permit has been issued to said business under this chapter, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette or other video reproduction which depicts specified sexual activities or specified anatomical areas shall comply with the following requirements:
(A) Upon application for a sexually oriented business permit, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of 1 or more manager’s stations, the location of all overhead lighting fixtures and designating any portion of the premises wherein patrons will not be permitted. A manager’s station may not exceed 32 square feet of floor area with no dimension greater than 8 feet. The diagram shall also designate the place where this permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram should be oriented to north or to some designated street or object and should be drawn to a designated scale with marked dimensions sufficient to show the various internal dimension of all areas of the interior of the premises to an accuracy of plus or minus 6 inches. The Board of Public Works and Safety designee may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.
(B) The application shall be sworn to be true and correct by the applicant.
(C) No alteration in the configuration or location of a manager’s station may be made without the approval of the Board of Public Works and Safety or its designee.
(D) It is the duty of the owners and operator of the premises to insure that at least 1 employee is on duty at each manager’s station at all times that any patron is present inside the premises.
(E) 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 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 1 of the manager’s stations. The view required in this subsection must be by direct line of sight from the manager’s station.
(F) 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 insure that the view area specified in subsection (E) above remains unobstructed by any doors, walls, merchandise, display racks or other materials or persons at all times and to insure 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 (A) above.
(G) No viewing room may be occupied by more than 1 person at any 1 time. No holes, commonly known as glory holes, shall be allowed in the walls or partitions which separate each viewing room from an adjoining viewing room or restroom.
(H) 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 2 foot candle as measured at the floor level.
(I) 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 insure that the illumination described above is maintained at all times that any patron is present on the premises.
(1994 Code, § 111.14) (Ord. 2001-1789, passed 6-11-2001)
111.15 PROHIBITIONS REGARDING MINORS AND SEXUALLY ORIENTED BUSINESSES.
(A) It shall be unlawful for a person who operates, or causes to be operated, a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, to knowingly or with reasonable cause knows, permits, suffers, or allows:
(1) Admittance of a person under 18 years of age to the business premises;
(2) A person who is under 18 years of age to work at the business premises as an employee.
(B) It shall be the duty of the operator of such sexually oriented business to ensure that an attendant is stationed at each public entrance at all times during such sexually oriented businesses’ regular business hours. It shall be the duty of the attendant to prohibit any person under the age of 18 years from entering the establishment. It shall be presumed that an attendant knew a person was under the age of 18 unless the attendant asked for and was furnished:
(1) A valid operator’s, commercial operator’s or chauffeur’s license; or
(2) A valid personal identification certificate issued by the State of Indiana reflecting that such person is 18 years of age or older.
(1994 Code, § 111.15) (Ord. 2001-1789, passed 6-11-2001) Penalty, see § 111.99
111.16 ADVERTISING AND LIGHTING REGULATIONS.
(A) It shall be unlawful for the owner or operator of a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, to advertise the presentation of any activity prohibited by any applicable state statute or local ordinance.
(B) It shall be unlawful for the owner or operator of a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, to display or otherwise exhibit the materials and/or performances at such sexually oriented business in any advertising or any portion of the interior premises which is visible outside the premises. This prohibition shall not extend to advertising of the existence or location of such sexually oriented business.
(C) It shall be unlawful for the owner or operator of a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, to allow the exterior portion of the sexually oriented business to have flashing lights, or any words, lettering, photographs, silhouettes, drawings, or pictorial representations of any manner except to the extent permitted by the provisions of this chapter.
(D) It shall be unlawful for the owner or operator of a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, to erect, construct, or maintain any sign for the sexually oriented business other than as permitted by the Plymouth On-Premise Sign Ordinance and as follows:
(1) Signage shall contain no photographs, silhouettes, drawings or pictorial representations in any manner and may contain only the legal name of the enterprise;
(2) Each letter forming a word on a primary sign shall be of solid color, and each such letter shall be the same print-type, site, and color. The background behind such lettering on the display surface of a primary sign shall be of a uniform and solid color.
(E) It shall be unlawful for the owner or operator of a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, to allow the exterior portions of the establishment to be painted any color other than a single achromatic color. This provision shall not apply to a sexually oriented business if the following conditions are met: the establishment is a part of a commercial multi-unit center and the exterior portions of each individual unit in the commercial multi-unit center, including the exterior portions of the business, are painted the same color as 1 another or are painted in such a way so as to be a component of the overall architectural style or pattern of the commercial multi-unit center.
(F) All off-street parking areas and premise 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 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 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 premise.
(G) Nothing contained in this section shall relieve the operator(s) of a sexually oriented business from complying with the requirements of this chapter, as it may be amended from time to time, or any subsequently enacted city ordinances or regulations.
(1994 Code, § 111.16) (Ord. 2001-1789, passed 6-11-2001) Penalty, see § 111.99
111.17 HOURS OF OPERATION.
(A) It shall be unlawful for any person to operate or cause to be operated a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, 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 10:00 p.m. and 10:00 a.m. of any particular day.
(B) It shall be unlawful for any person while working as an employee of a sexually oriented business, regardless of whether or not a permit has been issued for said business under this chapter, 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 10:00 p.m. and 10:00 a.m. of any particular day.
(1994 Code, § 111.17) (Ord. 2001-1789, passed 6-11-2001) Penalty, see § 111.99
111.18 NUDITY AT SEXUALLY ORIENTED BUSINESSES PROHIBITED.
No person shall allow public nudity in any sexually oriented business. Any sexually oriented business which is found in violation of this section shall have its permit suspended pursuant to the provisions of § 111.09.
(1994 Code, § 111.18) (Ord. 2001-1789, passed 6-11-2001)
111.19 REGULATIONS PERTAINING TO LIVE ENTERTAINMENT.
(A) For purposes of this section, LIVE ENTERTAINMENT is defined as a person who appears nude, semi-nude, or a performance which is characterized by the exposure of specified anatomical areas or by specified sexual activities.
(B) No person shall perform live entertainment for patron(s) of a sexually oriented business establishment except upon a stage at least 18 inches above the level of the floor which is separated by a distance of at least 10 feet from the nearest area occupied by patron(s). No patron shall be permitted within 10 feet of the stage while the stage is occupied by a performer.
(C) The sexually oriented business establishment shall provide separate dressing room facilities for female and male performers that shall not be occupied or used in any way by anyone other than performers.
(D) The sexually oriented business establishment shall provide access for performers between the stage and the dressing rooms which is completely separated from the patrons. If such separate access is not physically feasible, the establishment shall provide a minimum 4-foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers which prevents any physical contact between patrons and performers.
(E) No entertainer, either before, during, or after a performance, shall have physical contact with any patron, and no patron shall have physical contact with any entertainer either before, during or after a performance. This subsection shall only apply to physical contact while in or on the premises of the establishment.
(F) Fixed rails at least 30 inches in height shall be maintained establishing the separations between performers and patrons required by this section.
(G) No patron shall directly pay or give any gratuity to any entertainer. A patron who wishes to pay or give a gratuity to a performer shall place the gratuity in a container that is at all times located separately from the performers for the purpose of preventing any physical contact between a patron and a performer. No performer shall solicit any gratuity from any patron.
(H) No operator of a sexually oriented business establishment shall cause or allow a performer to engage in any entertainment such as a couch or a straddle dance with a patron while in or on the establishment premises. No performer shall contract to or engage in a couch or straddle dance with a patron while in or on the establishment premises. For purposes of this subsection, COUCH or STRADDLE DANCE is defined as an employee of the establishment intentionally touching or coming within 10 feet of any patron while engaged in the display or exposure of any specified anatomical area, or any specified sexual activity. For purposes of this subsection, employee is defined as it is in § 111.02.
(I) Section 111.19 shall not apply to an employee of an establishment who, while acting as a waiter, waitress, host, hostess, or bartender, comes within ten feet of a patron. No employee shall engage in any specified sexual activity or display or expose any specified anatomical area while acting as a waiter, waitress, host, hostess, or bartender.
(J) Compliance with this section:
(1) For purposes of this section, establishment is defined as it is in § 111.02. No establishment shall be in compliance with this section until the city’s designated agent(s) have inspected and approved of the establishment’s compliance. The city shall have 10 days from the date it receives written notice from the operator that the establishment is ready for inspection to approve or disapprove of compliance required by this section. Failure to approve or disapprove of compliance within 10 days shall constitute a finding of compliance under this section.
(2) The operator of an establishment, that has been providing live entertainment under a valid sexually oriented business permit shall have the time periods listed below in which to bring the establishment into compliance with this section. Failure to do so while continuing to provide live entertainment shall cause the establishment’s permit to be suspended under § 111.09. The permit shall remain suspended until the establishment is approved by the city’s designated agent(s) as being in full compliance with this section.
(3) The operator of an establishment that has been operating under a valid permit for another classification of sexually oriented business, and who wishes to provide live entertainment at that establishment, shall apply for and receive a sexually oriented business permit for the operation of an establishment providing live entertainment before any live entertainment is provided at that establishment. No live entertainment permit shall be issued until the establishment is approved as being in full compliance with this section and all other applicable requirements of this chapter.
(4) The applicant for a permit to operate a new establishment, who wishes to provide live entertainment, shall apply for and receive a sexually oriented business permit for the operation of an establishment providing live entertainment before any live entertainment is provided. No live entertainment permit shall be issued until the establishment is approved as being in full compliance with this section and all other applicable requirements of this chapter.
(5) Compliance with subsection (B) must occur within 60 days from the date this section becomes effective.
(6) Compliance with subsection (C) must occur within 90 days from the date this section becomes effective.
(7) Compliance with subsection (D) must occur within 90 days from the date this section becomes effective.
(8) Compliance with subsection (E) must occur upon the date this section becomes effective.
(9) Compliance with subsection (F) must occur within 60 days from the date this section becomes effective.
(10) Compliance with subsection (G) must occur upon the date this section becomes effective.
(11) Compliance with subsection (H) must upon the date this section becomes effective.
(1994 Code, § 111.19) (Ord. 2001-1789, passed 6-11-2001)
111.20 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 that 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 3 days in advance of the class; and
(c) Where no more than 1 nude model is on the premises at any 1 time.
(B) It is a defense to prosecution for a violation of this chapter that an employee of a sexually oriented business, regardless of whether or not it is permitted under this chapter, exposed any specified anatomical area during the employee’s bona fide use of a restroom, or during the employees bona fide use of a dressing room which is accessible only to employees.
(1994 Code, § 111.20) (Ord. 2001-1789, passed 6-11-2001)
111.21 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 shall include, but are not limited to, phallic shaped vibrators, dildo’s, muzzles, whips, chains, bather restraints, racks, non-medical enema kits, body piercing implements (excluding earrings or other decorative jewelry) or other tools of sadomasochistic abuse.
(1994 Code, § 111.21) (Ord. 2001-1789, passed 6-11-2001) Penalty, see § 111.99
111.99 PENALTY.
(A) A person who violates the provisions of this chapter shall be subject to a fine not to exceed $2,500 for each violation. Each day of continued violation shall constitute a separate offense.
(B) In addition to seeking penalties against individuals who violate provisions of this chapter, the City Attorney or his designated representative may commence legal action seeking injunctive relief against any individuals violating the provisions of this chapter.
(1994 Code, § 111.99) (Ord. 2001-1789, passed 6-11-2001)