Ordinance #275 - Adult Businesses
AN
ORDINANCE ESTABLISHING LICENSING REQUIREMENTS AND REGULATIONS FOR SEXUALLY
ORIENTED BUSINESSES WITHIN THE CITY OF
MARION
.
Section
-
Preamble
1.
Purpose and
Findings.
2.
Definitions.
3.
Classifications.
4.
Licenses
Required.
5.
Issuance of
License.
6.
Fees.
7.
Inspection.
8.
Expiration of
License.
9.
Suspension.
10.
Revocation.
11.
Hearing; License
Denial, Suspension, Revocation; Appeal.
12.
Transfer of
License.
13.
Hours of
Operation.
14.
Regulations
Pertaining to Exhibition of Sexually Explicit Films on Premises.
15.
Loitering and
Exterior Lighting and Monitoring Requirements.
16.
Penalties and
Enforcement.
17.
Applicability of
Ordinance to Existing Businesses
18.
Prohibited
Activities.
19.
Scienter Required
to Prove Violation or Business Licensee Liability.
20.
Failure of County
to Meet Time Frame Not to Risk Applicant/Licensee Rights
.
21.
Location of
Sexually Oriented Businesses.
22.
Severability.
23.
Conflicting Code
Provisions Repealed.
24.
Effective Date.
WHEREAS,
sexually oriented businesses require special supervision from the public safety
agencies of the City of Marion in order to protect and preserve the health,
safety, and welfare of the patrons of such businesses as well as the citizens of
the City; and
WHEREAS, the Marion City
Council finds that sexually oriented businesses, as a category of
establishments, are frequently used for unlawful sexual activities, including
prostitution and sexual liaisons of a casual nature; and
WHEREAS,
there is convincing documented evidence that sexually oriented businesses, as a
category of establishments, have deleterious secondary effects and are often
associated with crime and the downgrading of property values; and
WHEREAS, the Marion City
Council desires to minimize and control these adverse effect and thereby protect
the health, safety, and welfare of the citizenry; protect the citizens from
crime; preserve the quality of life; preserve the property values and character
of surrounding neighborhoods and deter the spread of urban blight; and
WHEREAS, the Marion City
Council recognizes its constitutional duty to interpret, construe and amend its
laws and ordinances to comply with constitutional requirements as they are
announced; and
WHEREAS, with the passage of
any ordinance, the City and the Council accept as binding the applicability of
general principles of criminal and civil law and procedure and the rights and
obligations under the united States and South Dakota Constitutions, South Dakota
Code, and the South Dakota Rules of Civil and Criminal Procedure; and
WHEREAS, it is not the intent
of this ordinance to suppress any speech activities protected by the U.S.
Constitution or the South Dakota Constitution, but to enact any ordinance to
further the content-neutral governmental interests of the City, to wit, the
controlling of secondary effects of sexually oriented businesses.
NOW, THEREFORE, BE IT RESOLVED AND ORDAINED by the Marion City Council, on the 3rd day of
April, 2006, that the following ordinance be enacted:
Section
1. Rationale and findings.
(a)
Rationale. It is the
purpose of this ordinance to regulate sexually oriented businesses in order to
promote the health, safety, and general welfare of the citizens of the City, and
to establish reasonable and uniform regulations to prevent the deleterious
secondary effects of sexually oriented businesses within the City.
The provisions of this ordinance have neither the purpose nor effect of
imposing a limitation or restriction on the content or reasonable access to any
communicative materials, including sexually oriented materials.
Similarly, it is neither the intent nor effect of this ordinance 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 ordinance to condone or
legitimize the distribution of obscene material.
(b)
Findings. Based on
evidence of the adverse secondary Effect of adult uses presented in hearings and
in reports made available to the Council, and on finds, interpretations, and
narrowing constructions incorporated in the cases of City
of Littleton v. Z.J. Gifts D-4, L.L.C., 124 S. Ct. 2219 (June 7, 2004);
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Pap’s
A.M. v. City of Erie, 529 U.S. 277 (2000); City
of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young
v. American Mini Theaters, 426 U.S. 50 (1976); Barnes
v. Glen Theatre, Inc., 501 U.S. 560 (1991); California
v. LaRue, 409 U.S. 109 (1972); Heideman
v. South Salt Lake City, 342 F.3d 1182 (10th Cir. 2003); Farkas
v. Miller, 151 F.3d 900 (8th Cir. 1998); United
States v. Evans, 272 F.3d 1069 (8th Cir. 2002); United
States v. Mueller, 663 F.2d 811 (8th Cir. 1981); BZAPS,
Inc. v. City of Mankato, 268 F.3d 603 (8th Cir. 2001);
PHE, Inc. v. State, 2004 Miss. LEXIS 269 (2004); Yorko
v. State, 690 S.W.2d 260 (Tex. 1985); SOB,
Inc. v. County of Benton, 317 F.3d 856 (8th Cir. 2003); United
States v. Frederickson, 846 F.2d 517 (1988); ILQ
Invs. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Ctr.
for Fair Public Policy v. Maricopa County, 336 F.4d 1153 (9th
Cir, 2003); North Avenue Novelties, Inc.
v. City of Chicago, 88 F.3d 441 (1996); World
Wide Video of Washington, Inc. v. City of Spokane, 386 F.3d 1186 (9th
Cir. 2004); Lady J. Lingerie, Inc. v. City
of Jacksonville, 176 F.3d 1358 (11th Cir. 1999);
and based upon reports concerning secondary effects occurring in and
around sexually oriented businesses, including, but not limited to, Austin,
Texas – 1986; Indianapolis, Indiana – 1984; Garden Grove, California –
1991’ Houston, Texas – 1983, 1997; Phoenix, Arizona – 1979, 1995-98;
Chattanooga, Tennessee – 1999-2003; Minneapolis, Minnesota – 1980; Los
Angeles, California – 1977; Whittier, California – 1978; Spokane, Washington
– 2001; St. Cloud, Minnesota – 1994; Littleton, Colorado – 2004; Oklahoma
City, Oklahoma – 1986; Dallas, Texas – 1997; Greensboro, North Carolina –
2003; Amarillo, Texas – 1977; Roncek, McCleary Expert Reports – 2004; New
York, New York Times Square – 1994; and the Report of the Attorney General’s
Working Group on the Regulation of Sexually Oriented Businesses, (June 6, 1989,
State of Minnesota),
the Council finds:
(1)
Sexually oriented businesses, as a category of commercial uses, are
associated with a wide variety of adverse secondary effects including, but not
limited to, personal and property crimes, prostitution, potential spread of
disease, lewdness, public indecency, obscenity, illicit drug use and drug
trafficking, negative impacts on property values, urban blight, litter, and
sexual assault and exploitation.
(2)
Sexual acts, including masturbation, oral and anal sex, sometimes occur
inside the premises of or in the parking lot of unregulated sexually oriented
businesses, including but not limited to those which provide private or
semi-private booths, rooms, or cubicles for viewing films, video, or live
sexually explicit shows, which acts pose a risk to public health through the
spread of sexually transmitted diseases.
(3)
Sexually oriented businesses should be separated from sensitive land uses
to minimize the impact of their secondary effects upon such uses, and should be
separated from other sexually oriented businesses, to minimize the secondary
effects associated with such uses and to prevent an unnecessary concentration of
sexually oriented businesses in one area.
(4)
Each of the Foregoing negative secondary effects constitutes a harm which
the City has a substantial government interest in preventing and/or abating, and
said substantial interest exists independent of any comparative analysis between
sexually oriented and non-sexually oriented businesses.
Section
2. Definitions.
For purposes
of this chapter, the words and phrases defined in the sections hereunder shall
have the meanings therein respectively ascribed to them unless a different
meaning is clearly indicated by the context.
“Adult
Arcade” means any
place to which the public is permitted or invited wherein coin-operated or
slug-operated or electronically, electrically, or mechanically controlled still
or motion picture machines, projectors, or other image-producing devices are
regularly maintained to show images to five or fewer persons per machine at any
one time, and where the images so displayed are characterized by their emphasis
upon matter exhibiting “specified sexual activities” or specified
“anatomical areas”.
“Adult
Bookstore or Adult Video Store” means
a commercial establishment which, as one of its principal purposes, offers for
sale or rental for any form of consideration any one or more of the following:
books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, video cassettes, compact discs, digital video discs,
slides, or other visual representations which are characterized by their
emphasis upon the display of “specified sexual activities” or “specified
anatomical areas.”
A “principal purpose” means that the commercial establishment:
(a) has a substantial portion
of its displayed merchandise which consists of said items, or
(b)
has a substantial portion of the wholesale value of its displayed
merchandise which consists of said items, or
(c)
has a substantial portion of the retail value of its displayed
merchandise which consists of said items, or
(d)
derives a substantial portion of its revenues from the sale or rental,
for any form of consideration of said items, or
(e)
maintains a substantial section of its interior business space for the
sale or rental or said items.
“Adult
Cabaret” means a
nightclub, bar, juice bar, restaurant, bottle club, or similar commercial
establishment, regardless of whether alcoholic beverages are served, which
regularly features:
(a)
persons who appear nude or semi-nude; or
(b)
live performances which are characterized by the exposure of “specified
anatomical areas” or by “specified sexual activities;” or
(c)
films, motion pictures, video cassettes, slides or other photographic
reproductions which are characterized by the exhibition or display of
“specified sexual activities” or “specified anatomical areas.”
“Adult
Motel” means a
motel, hotel, or similar commercial establishment which:
(a)
offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films, motions
pictures, video cassettes, other photographic reproductions, or live
performances which are characterized by the display of “specified sexual
activities” or “specified anatomical areas”; and which advertises the
availability of such material by means of a sign visible from the public
right-of-way, or by means of any on or 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 that is less than 10
hours; or
(c)
allows a tenant or occupant of a sleeping room to sub rent the room for a
period of time that is less than 10 hours.
“Adult
Motion Picture Theater”
means a commercial establishment where films, motion pictures, videocassettes,
slides, or similar photographic reproductions which are characterized by their
emphasis upon the display of “specified sexual activities” or “specified
anatomical areas” are regularly shown to more than five persons for any form
of consideration.
“Art
Museum” and/or “
Art
Gallery
”
means any structure where paintings, sculptures, pottery, lithograph and
anything of artistic expression is shown, excluding live models in a state of
nudity or semi nudity.
“Characterized”
means to describe the essential character or quality of an item.
As applied in this ordinance, no business shall be classified as a
sexually oriented business by virtue of showing, selling, or renting materials
rated NC-17 or R by the Motion Picture Association of America.
“City”
means the City of
Marion
,
Turner County
,
South Dakota
.
“Council”
means the Marion City Council.
“Employ,
Employee, and Employment”
describe and pertain to any person who performs any service on the premises of a
sexually oriented business, on a full time, part time, or contract basis,
whether or not the person is denominated an employee, independent contractor,
agent or otherwise. Employee does
not include a person exclusively on the Premises for repair or maintenance of
the premises or for the delivery of goods to the premises.
“Establish
or Establishment”
shall mean and include any of the following:
(a)
The opening or commencement of any sexually oriented business as a new
business;
(b)
The conversion of an existing business, whether or not a sexually
oriented business, to any sexually oriented business;
(c)
The addition of any sexually oriented business to any other existing
sexually oriented business.
“Finance
Officer” means the
City Finance Officer.
“Hearing
Body” shall be the
Marion City Council.
“Influential
Interest” means
any of the following: (1) the actual
power, directly or indirectly, to control the operation, management or policies
of a business or entity, (2) ownership of a financial interest of thirty-five
percent (35%) or more of a business or of any class of voting securities of a
business, or (3) holding an office (e.g., president, vice president, secretary,
treasurer, etc.) or directorship in a legal entity which operates the sexually
oriented business.
“Licensed
Day-Care Center”
means a facility licensed by the State of South Dakota, whether situated within
the County or not, that provides care, training, education, custody, treatment
or supervision for more than twelve (12) children under fourteen (14) years of
age, where such children are not related by blood, marriage or adoption to the
owner or operator of the facility, for less than twenty-four (24) hours a day,
regardless of whether or not the facility is operated for a profit or charges
for the services it offers.
“Licensee”
shall mean a person, whose name a license to operate a sexually oriented
business has been issued, as well as the individual or individuals listed as an
applicant on the application for a sexually oriented business license.
In case of an “employee,” it shall mean the person whose name the
sexually oriented business employee license has been issued.
“Nudity”
or “State of
Nudity
” means the
showing of the human male or female genitals, pubic area, vulva, anus, anal
cleft or cleavage with less than a fully opaque covering, or the showing of the
female breast with less than a fully opaque covering of any part of the nipple
and areola.
“Operate”
or “Cause to Operate” shall mean to cause to function or to put or
keep in a state of doing business. “Operator”
means any person on the premises of a sexually oriented business who causes the
business to function or who puts or keeps in operation the business or who is
authorized to manage the business or exercise overall operational control of the
business premises. A person may be
found to be operating or causing to be operated a sexually oriented business
whether or not that person is an owner, part owner, or licensee of the business.
“Person”
shall mean individual, proprietorship, partnership, corporation, association, or
other legal entity.
“Premises”
means the real
property upon which the sexually oriented business is located, and all
appurtenances thereto and buildings thereon, including, but not limited to, the
sexually oriented business, the grounds, private walkways, and parking lots
and/or parking garages adjacent thereto, under the ownership, control, or
supervision of the licensee, as described in the application for a business
license pursuant to Section IV of this ordinance.
“Regularly”
means and refers to the consistent and repeated doing of the act so described.
“Semi-Nude
Model Studio”
means a place where persons regularly appear in a state of semi-nudity for money
or any form of consideration in order to be observed, sketched, drawn, painted,
sculptured, photographed, or similarly depicted by other persons.
This definition does not apply to any place where persons appearing in a
state of semi-nudity did so in a modeling class operated:
(a)
By 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 college, junior
college, or university supported entirely or partly by taxation; or
(c)
In a structure:
(1)
Which has no sign visible from the exterior of the structure and no other
advertising that indicates a semi-nude person is available for viewing; and
(2)
Where, in order to participate in a class a student must enroll at least
three days in advance of the
class.
“Sexual
Device” means any
three (3) dimensional object designed and marketed for stimulation of the male
or female human genital organ or anus or for sadomasochistic use or abuse of
oneself or others and shall include devices such as dildos, vibrators, penis
pumps, and physical representation of the human genital organs.
Nothing in this definition shall be construed to include devices
primarily intended for protection against sexually transmitted diseases or for
preventing pregnancy.
“Sexual
Devise Shop” means
a commercial establishment that regularly features sexual devises.
Nothing in this definition shall be construed to include any pharmacy,
drug store, medical clinic, or any establishment primarily dedicated to
providing medical or healthcare products or services, nor shall this definition
be construed to include commercial establishments which do not restrict access
to any portion of their premises by reason of age.
“Sexual
Encounter Center”
shall mean a business or commercial enterprise that, as one of its principal
business purposes, purports to offer for any form of consideration, physical
contact in a form of wrestling or tumbling between persons of the opposite sex
when one or more of the persons is semi-nude.
“Sexually
Oriented Business”
means an “adult bookstore or adult video store,” an “adult cabaret,” an
“adult motel,” an “adult motion picture theater,” a “semi-nude model
studio,” or a “sexual encounter center.”
“Specified
Anatomical Areas”
means and includes:
(a)
Less than completely and opaquely covered:
human genitals, pubic region; buttock; and female breast below a point
immediately above the top of the areola; and
(b)
Human male genitals in a discernibly turgid state, even if completely and
opaquely covered.
“Specified
Criminal Activity”
means any of the following specified crimes for which less than five years
elapsed since the date of conviction or the date of release from confinement for
the conviction, whichever is the later date:
(a)
a sex crime as defined in S.D. Codified Laws § 22-22-30 (1)-(14);
(b)
prostitution or promotion of prostitution, as defined in S.D. Codified
Laws § 22-23-1 and § 22-23-2;
(c)
an obscenity or public indecency offense as defined in S.D. Codified Laws
Chapter 22-24;
(d)
a controlled substance offense as defined in S.D. Codified Laws §
22-42-2;
(e)
attempt, conspiracy, or solicitation to commit any of the foregoing
offenses; or
(f)
any offense in another jurisdiction that, had the predicate act(s) been
committed in
South Dakota
, would have constituted any of the foregoing offenses.
“Specified
Sexual Activity”
means any of the following:
(a)
intercourse, oral copulation, masturbation or sodomy; or
(b)
excretory functions as a part of or in connection with any of the
activities described in (a) above.
“Substantial”
means at least thirty-five percent (35%) of the item(s) so modified.
“Transfer
of Ownership or Control”
of a sexually oriented business shall mean any of the following:
(a)
The sale, lease, or sublease of the business;
(b)
The transfer of securities which constitute an influential interest in
the business, whether by sale, exchange, or similar means; or
(c)
The establishment of a trust, give, or other similar legal device which
transfers the ownership or control of the business, except for transfer by
bequest or other operation of law upon the death of the person possessing the
ownership or control.
“Viewing
Room” shall mean
the room, booth, or area where a patron of sexually oriented business would
ordinarily be positioned while watching a film, videocassette, or other video
reproduction.
Section
3. Classification.
The classifications for sexually oriented businesses shall be as follows:
(a)
Adult bookstores
or adult video stores;
(b)
Adult cabarets;
(c)
Adult motels;
(d)
Adult motion
picture theaters;
(e)
Semi-nude model
studios;
(f)
Sexual device
shops;
(g)
Sexual encounter
centers.
Section
4. License required.
(a)
It shall be unlawful for any person to operate a sexually oriented
business in the City of
Marion
without a valid sexually
oriented business license.
(b)
It shall be unlawful for any person to be an “employee,” as defined
in this Chapter, of a sexually oriented business in the City of
Marion
without a valid sexually
oriented business employee license.
(c)
An applicant for a sexually oriented business license or sexually
oriented business employee license shall file in person at the office of the
Marion City Finance Office a completed application made on a form provided by
the Finance Office. The application
shall be signed as required by subsection (e) herein and shall be notarized.
An application shall be considered complete when it contains, for each
person required to sign the application, the information and/or times required
in Paragraphs 1 through 7 below, accompanied by the appropriate fee identified
in Section 6:
(1)
The applicant’s full true name and any other names used by the
applicants in the preceding five (5) years.
(2)
Current business address or another mailing address of the applicant.
(3)
Written proof of age, in the form of a driver’s license or a copy of a
birth certificate accompanied by a picture identification document issued by a
governmental agency.
(4)
If the application is for a sexually oriented business license, the
business name, location, legal description, mailing address and phone number of
the sexually oriented business.
(5)
If the application is for a sexually oriented business license, the name
and business address of the statutory agent or other agent authorized to receive
service of process.
(6)
A statement of whether an applicant has been convicted of or has pled
guilty or nolo contendere to a specified criminal activity as defined in this
ordinance, and if so, each specified criminal activity involved, including the
date, place, and jurisdiction of each as well as the dates of conviction and
release from confinement, where applicable.
(7)
A statement of whether any sexually oriented business in which an
applicant has had an influential interest, has, in the previous five (5) years
(and at a time during which the applicant had the influential interest):
(i)
been declared by a court of law to be a nuisance; or
(ii)
been subject to a court order of closure or padlocking.
The information provided pursuant to Paragraphs 1 through 7 of this
subsection shall be supplemented in writing by certified mail, return receipt
requested, to the Auditor’s Office within ten (10) working days of a change of
circumstances which would render the information originally submitted false or
incomplete.
(d)
An application for a sexually oriented business license shall be
accompanied by a legal description of the property where the business is located
and 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 by 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.
Applicants who are required to comply with Sections 14 and 18 of this
chapter shall submit a diagram indicating that the interior configuration meets
the requirements of those sections.
(e)
If a person who wishes to operate a sexually oriented business is an
individual, he shall sign the application for a license as applicant.
If a person who wishes to operate a sexually oriented business is other
than an individual, each person with an influential interest in the business
shall sign the application for a license as applicant.
Each applicant must be qualified under Section 5 and each applicant shall
be considered a licensee if a license is granted.
(f)
The information provided by an applicant in connection with an
application for a license under this chapter shall be maintained by the Finance
Office on a confidential basis, and such information may disclosed only as may
be required, and only to the extent required, by court order.
Section
5. Issuance of license.
(a)
Upon the filing of a completed application under Section 4(c) for a
sexually oriented business employee license, the Marion City Finance Office
shall immediately issue a Temporary License to the applicant, which Temporary
License shall expire upon the final decision of the City to deny or grant an
annual license. Within twenty (20)
days of the filing date of a completed sexually oriented business employee
license application, the Finance Officer shall either issue a license or issue a
written notice of intent to deny a license to the applicant.
The Finance Officer shall approve the issuance of a license unless:
(1)
The applicant is less than eighteen (18) years of age.
(2)
The applicant has failed to provide information as required by Section 4
for issuance of a license or has falsely answered a question or request for
information on the application form.
(3)
The license application fee required by this Chapter has not been paid.
(4)
Any sexually oriented business in which the applicant has had an
influential interest, has in the previous five (5) years (and at a time during
which the applicant had the influential interest):
(i)
been declared by a court of law to be a nuisance;
or
(ii)
been subject to an order of closure or padlocking.
(5)
The applicant has been convicted of or pled guilty or nolo contendere to
a specified criminal activity, as defined in this ordinance.
(6)
An applicant has been convicted of or pled guilty or nolo contendere to a
specified criminal activity, as defined in this ordinance.
(b)
The license, if granted, shall state on its face the name of the person
or person to whom it is granted, the number of the license issued to the
licensee(s), the expiration date, and, if the license is for a sexually oriented
business, the address of the sexually oriented business.
The sexually oriented business license shall be posted in a conspicuous
place at or near the entrance to the sexually oriented business to that it may
be 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 or performing.
Section
6. Fees.
(a)
The initial license and annual renewal fees for sexually oriented
business licenses and sexually oriented business employee licenses shall be as
follows: One Hundred dollars
($100.00) for the initial fee for a sexually oriented business license and Fifty
dollars ($50.00) for annual renewal; Fifty dollars ($50.00) for the initial
sexually oriented business employee license and Twenty-Five dollars ($25.00) for
annual renewal.
Section 7. Inspection.
(a)
Sexually oriented businesses and sexually oriented business employees
shall permit the Sheriff of Turner County, or any City Building Inspector, any
of their Deputies and/or agents to inspect, from time to time on an occasional
basis, the portions of the sexually oriented business premises where patrons are
permitted, for the purpose of ensuring compliance with the specific regulations
of this Chapter, during those times when the sexually oriented business is
occupied by patrons or is open to the public.
This section shall be narrowly construed by the City to authorize
reasonable inspection of the licensed premises pursuant to this chapter, but not
to authorizing a harassing or excessive pattern of inspections.
(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
8. Expiration of license.
(a)
Each license shall remain valid for a period of one calendar year from
the date of issuance unless otherwise suspended or revoked.
Such license may be renewed only by making applications and payment of a
fee as provided in Section 4 and Section 6.
(b)
Application for renewal should be made pursuant to the procedures set
forth in Section 4 at least ninety (90) days before the expiration date, and
when made less than ninety (90) days before the expiration date, the expiration
of the license will not be affected.
Section
9. Suspension.
(a)
The City shall issue a written letter of intent to suspend a sexually
oriented business license for a period not to exceed thirty (30) days if the
sexually oriented business licensee has knowingly violated this Chapter or has
knowingly allowed an employee to violate this Chapter.
(b)
The City shall issue a written letter of intent to suspend a sexually
oriented business employee license if the employee has knowingly violated this
Chapter.
Section
10. Revocation.
(a)
The City shall issue a letter of intent to revoke a sexually oriented
business license or a sexually oriented business employee license, as
applicable, if the licensee knowingly violates this chapter or has knowingly
allowed an employee to violate this chapter and the licensee’s license has
been suspended within the previous twelve-month (12-mo.) period.
(b)
The City shall issue a written intent to revoke a sexually oriented
business license and/or a sexually oriented business employee license, as
applicable, if:
(1)
The licensee has knowingly given false information in the application for
the sexually oriented business license.
(2)
The licensee has knowingly or recklessly engaged in or allowed
possession, use, or sale of controlled substance on the premises;
(3)
The licensee has knowingly or recklessly engaged in or allowed
prostitution on the premises;
(4)
The licensee knowingly or recklessly operated the sexually oriented
business during a period of time when the license was finally suspended or
revoked; or
(5)
The licensee has knowingly or recklessly engaged in or allowed any
specified sexual activity to occur in or on the licensed premises.
(c)
The fact that any relevant conviction is being appealed shall have no
effect on the revocation of the license, provided that, if any conviction which
serves as a basis of a license revocation is overturned or reversed on appeal,
that conviction shall be treated as null and of no effect for revocation
purposes.
(d)
When, after the notice and hearing procedure described in Section 11, the
City Council revokes a license, the revocation shall continue for two (2) years
and the licensee shall not be issued a sexually oriented business license or
sexually oriented business employee license for two (2) years from the date
revocation becomes effective.
Section
11. Hearing; denial, revocation, and suspension; appeal.
(a)
When the Finance Officer issues a written notice of intent to deny,
suspend, or revoke a license, the Finance Officer shall immediately send such
notice, which shall include the specific grounds under this ordinance for such
action, to the applicant or license (respondent) by personal delivery or
certified mail. The notice shall be
directed to the most current business address or other mailing address on file
with the Finance Officer for the respondent.
The notice shall specify a date, not less than ten (10) days nor more
than twenty (20) days after the date the notice is issued, on which the Council
shall conduct a hearing on the Finance Officer’s intent to deny, suspend, or
revoke the license.
At the hearing, the respondent shall have the opportunity to present all
of respondent’s arguments and to be represented by counsel, present evidence
and witnesses on his or her behalf, and cross-examine any of the Finance
Officer’s witnesses. The Finance
Officer shall also be represented by counsel, and shall bear the burden of
proving the grounds for denying, suspending, or revoking the license.
The hearing shall take no longer than two (2) days, unless extended at
the request of the respondent to meet the requirements of due process and proper
administration of justice. The
Marion City Council shall issue a written decision, including specific reasons
for the decision pursuant to this ordinance, to the respondent within five (5)
days after the hearing.
If the decision is to deny, suspend, or revoke the license, the decision
shall not become effective until after the decision is published in accordance
with
South Dakota
law, the decision shall
include a statement advising the respondent of the right to appeal such decision
to a court of competent jurisdiction. If
the City Counsel’s decision finds that no grounds exist for denial,
suspension, or revocation of the license, the City Counsel shall,
contemporaneously with the issuance of the decision, order the Finance Officer
to immediately withdraw the intent to deny, suspend, or revoke the license and
to notify the respondent in writing by certified mail of such action.
If the respondent is not yet licensed, the Finance Officer shall
contemporaneously therewith issue the license to the applicant.
(b)
If any court action challenging the City Council’s decision is
initiated, the City Council shall prepare and transmit to the Court a transcript
of the hearing within ten (10) days after receiving written notice of the filing
of the Court action. The City
Council shall consent to expedited briefing and/or disposition of the action,
shall comply with any expedited schedule set by the Court, and shall facilitate
prompt judicial review of the proceedings. The
following shall apply to any sexually oriented business that is in operation as
of the effective date of this ordinance: 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 respondent a Provisional License.
The Provisional License shall allow the respondent to continue operation
of the sexually oriented business or to continue employment as a sexually
oriented business employee and will expire upon the Court’s entry of a
judgment on the respondent’s appeal or other action to restrain or otherwise
enjoin the City’s enforcement.
Section
12. 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 sexually oriented business
license application.
Section
13. Hours of operation.
No sexually oriented business shall be or remain open for business between
2:00 a.m.
and
7:00 a.m.
on any day.
Section
14. Regulations pertaining to exhibition of sexually explicit films or videos.
(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, or other video reproduction characterized by an emphasis on the
display of specified sexual activities or specified anatomical areas shall
comply with the following requirements.
(1)
Each application for a sexually oriented business license shall contain a
diagram of the premises showing the location of all operator’s stations,
viewing rooms, overhead lighting fixtures, video cameras and monitors installed
for monitoring purposes and restrooms, and shall designate all portions of the
premises in which patrons will not be permitted.
Restrooms shall not contain video reproduction equipment.
The diagram shall also designate the place at which the 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 shall be
oriented to the north or to some designated street or object and shall 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 inches. The
Auditor 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.
(2)
It shall be the duty of the operator, and of any employees present on the
premises, 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 Paragraph 1 on this subsection.
(3)
The interior 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. It shall be the
duty of the operator, and of any employees present on the premises, to ensure
that the illumination described above is maintained at all times that the
premises is occupied by patrons or open for business.
(4)
It shall be the duty of the operator, and of any employees present on the
premises, to ensure that no sexual activity occurs in or on the licensed
premises.
(5)
It shall be the duty of the operator to post conspicuous signs in
well-lighted entry areas of the business state all of the following:
(i)
That the occupancy of viewing rooms is limited to one person.
(ii)
That sexual activity on the premises is prohibited.
(iii)
That the making of openings between viewing rooms is prohibited.
(iv)
That violators will be required to leave the premises.
(v)
That violations of Subparagraphs (b), (c) and (d) of this paragraph are
unlawful.
(6)
It shall be the duty of the operator to enforce the regulations
articulated in (5)(i) through (iv) above.
(7)
The interior of the premises shall be configured in such a manner that
there is an unobstructed view from the operator’s station of every area of the
premises, including the interior of each viewing room but excluding restrooms,
to which any patron is permitted access for any purpose.
An operator’s station shall not exceed thirty-two (32) square feet of
the floor area. If the premises has
two (2) or more operator’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 operator’s stations.
The view required in this paragraph must be by direct line of sight from
the operator’s station. It is the
duty of the operator to ensure that at least one employee is on duty and
situated in an operator’s station at all times that any patron is in the area
monitored by direct line of sight from that operator’s station.
It shall be the duty of the operator, and it shall also be in the duty of
any employees present on the premises, to ensure that the view area specified in
this paragraph remains unobstructed by any doors, curtains, walls, merchandise,
display racks or other materials or enclosures at all times that any patron is
present on the premises.
(b)
It shall be unlawful for a person having a duty under this section to
knowingly fail to fulfill that duty.
Section
15. Loitering, exterior lighting, visibility, and monitoring requirements.
(a)
It shall be the duty of the operator of a sexually oriented business to:
(a) post conspicuous signs stating that no loitering is permitted on such
property; (b) designate on or more employees to monitor the activities of
persons on such property by visually inspecting such property at least once
every ninety (90) minutes or inspecting such property by use of video cameras
and monitors; and (c) provide lighting of the exterior premises to provide for
visual inspection or video monitoring to prohibit loitering.
If used, video cameras and monitors shall operate continuously at all
times that the premises are open for business.
The monitors shall be installed within an operator’s station.
(b)
It shall be unlawful for the person having a duty under this section to
knowingly fail to fulfill that duty.
(c)
No sexually oriented business shall erect a fence, wall, or other barrier
that prevents any portion of the parking lot(s) for the establishment from being
visible from a public right of way.
Section
16. Penalties and enforcement.
(a)
A person who knowingly violates, disobeys, omits, neglects, or refuses to
comply with or resists the enforcement of any of the provisions of this chapter
shall be guilty of a Class 2 misdemeanor, and, upon conviction, shall be
punishable by a fine not to exceed $200.00 and/or imprisonment in the County
Jail for a period not to exceed thirty (30) days.
Each day a violation is committed, or permitted to continue, shall
constitute a separate offense and shall be fined as such.
(b)
The City’s attorney is hereby authorized to institute civil proceedings
necessary for the enforcement of this ordinance to prosecute, restrain, or
correct violations hereof. Such
proceedings, including injunctions, shall be brought in the name of the City,
provided, however, that nothing in this section and no action taken hereunder,
shall be held to exclude such criminal or administrative proceedings as may be
authorized by other provisions of this ordinance, or any of the laws or
ordinances in force in the City or to exempt anyone violating this code or any
part of the said laws from any penalty which may be incurred.
Section
17. Applicability of ordinance to existing businesses.
All existing
sexually oriented businesses and sexually oriented business employees are hereby
granted a De Facto Temporary license
to continue operation or employment for a period of ninety (90) days following
the effective date of this ordinance. By
the end of said ninety (90) days, all sexually oriented businesses and sexually
oriented business employees must conform to and abide by the requirements of
this chapter.
Section
18. Prohibited activities.
It is unlawful for a sexually oriented business to knowingly violate the
following regulations or to knowingly allow an employee or any other person to
violate the following regulations.
(a)
It shall be a violation of this ordinance for a patron, employee, or any
other person to knowingly or intentionally, in a sexually oriented business,
appear in a state of nudity, regardless of whether such public nudity is
expressive in nature.
(b)
It shall be a violation of this ordinance 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, remains at least six (6)
feet from any patron or customer on a stage at least eighteen (18) inches from
the floor in a room of at least eight hundred (800) square feet.
(c)
It shall be a violation of this ordinance for any employee who regularly
appears semi-nude in a sexually oriented business to knowingly or intentionally
touch a customer or the clothing of a customer on the premises of a sexually
oriented business.
(d)
It shall be a violation of this ordinance for any person to sell, use, or
consume alcoholic beverages on the premises of a sexually oriented business.
A sign in a form to be prescribed by the Finance Officer and summarizing
the provisions of Paragraphs (a), (b), (c) and (d) of this Section, shall be
posted near the entrance of the sexually oriented business in such a manner as
to be clearly visible to patrons upon entry.
Section
19. Scienter required to prove violations or business licensee liability.
This ordinance does not impose strict liability.
Unless a culpable mental state is otherwise specified herein, a showing
of a knowing or reckless mental state is necessary to establish a violation of a
provision of this ordinance. Notwithstanding
anything to the contrary, for the purposes of this ordinance, an act by an
employee that constitutes grounds for suspension or revocation of that
employee’s license shall be imputed to the sexually oriented business licensee
for purposes of finding a violation of this ordinance, or for purposes of
license denial, suspension, or revocation, only if an officer, director, or
general partner, or a person who managed, supervised, or controlled the
operation of the business premises, knowingly or recklessly allowed such act to
occur on the premises. It shall be a
defense to liability that the person to whom liability was imputed was powerless
to prevent the act.
Section
20. Failure of City to meet deadline not to risk applicant/licensee right.
In the event that a City official is required to take an act or do a thing
pursuant to this ordinance within a prescribed time, and fails to take such act
or do such thing within the time prescribed, said failure shall not prevent the
exercise of the constitutional rights of an applicant or licensee.
If the act required of the City official under this ordinance, and not
completed in the time prescribed, includes approval of condition(s) necessary
for approval by the City of an applicant or licensee’s application for
sexually oriented business license or a sexually oriented business employee’s
license (including a renewal), the license shall be deemed granted and the
business or employee allowed to commence operation or employment the day after
the deadline for the City’s action has passed.
Section
21. Location of sexually oriented businesses.
(a)
The following shall apply only to sexually oriented businesses not
established prior to the effective date of this ordinance:
It shall be unlawful to establish, operate, or cause to be operated a
sexually oriented business in the City of
Marion
, unless said sexually oriented business is at least:
(1)
500 feet from any parcel occupied by another sexually oriented business
or by a business licensed by the State of South Dakota to sell alcohol at the
premises; and
(2)
500 feet from any parcel occupied by a house of worship, licensed day
care center, public or private elementary or secondary school, public park, or
any residence.
(b)
For the purpose of this section, measurements shall be made in a straight
line in all directions without regard to intervening structures or objects, from
the closest part of any structure, including signs and roof overhangs, used in
conjunction with a sexually oriented business to the closest point on a property
boundary or right-of-way associated with any of the land use(s) identified in
subsection (a)(1)-(a)(2) above.
(c)
If the sexually oriented business use, lot, or occupancy is discontinued
for more than one year for any reason, the Council may adopt, after notice by
registered or certified mail to the property owners, an amortization schedule to
bring about the gradual elimination of the nonconforming use, lot, or occupancy.
