The “Bridgeport Sexually Oriented Business Ordinance”

Grab a pot of coffee. Maybe two. Not because it’s not interesting reading but because of the length of City Councilman Bob “Troll” Walsh’s revealing proposed ordinance to cover adult entertainment establishments, a hairy issue in the city. City planners are considering new regulations for strip joints such as where to place them. Does the City Council have jurisdiction in this area? The Troll declares yes and pretty much covers the waterfront for strip joints, massage parlors and adult cabaret including doors, curtains, blinds, rate regulation and licensing. Troll gives new meaning to political peeps. Check out this National Geographic length ordinance based on one enacted in Berlin, Connecticut, with a local tweak from The Troll. It was submitted to the Ordinance Committee Monday night:

Chapter 8.81

SEXUALLY ORIENTED BUSINESSES ORDINANCE

8.81.010 Short Title

This chapter shall be known and may be cited as the “Bridgeport Sexually Oriented Business ordinance.”

8.81.020 Purpose of chapter

The city of Bridgeport City Council finds:

(1) The operation of sexually oriented businesses in the city requires special regulation and supervision by the city to protect, preserve and promote the health, safety and welfare of the patrons of such businesses, as well as the health, safety and welfare of the city’s residents. Further, protecting order and morality, preserving the character and preventing the deterioration of the city’s neighborhoods, promoting retail trade, maintaining property values, and ensuring sanitary and safe public places are desirable objectives of the community and its leaders.

(2) Statistics and studies performed by a substantial number of cities and cities in the United States indicate that:

a. Large numbers of persons, primarily male, frequent such sexually oriented businesses, especially those which provide closed booths, cubicles, studios and rooms for the private viewing of so-called “adult” motion pictures, videotapes or live entertainment.

b. Such closed booths, cubicles, studios and rooms have been used by patrons, clients or customers of such sexually oriented businesses for the purpose of engaging in specified sexual activities.

c. Male and female prostitutes have been known to frequent such businesses in order to provide sex for hire to the patrons, clients or customers of such businesses within such booths, cubicles, studios and rooms.

d. Doors, curtains, blinds and other closures installed in or on the entrances and exits of such booths, cubicles, studios and rooms which are closed while such booths, cubicles, studios and rooms are in use encourage patrons using such booths, cubicles, studios and rooms to engage in specified sexual activities therein with prostitutes, other persons or by themselves, thereby promoting and encouraging prostitution and the commission of specified sexual activities which cause blood, semen, urine or other bodily secretion to be deposited on the floors and walls of such booths, cubicles, studios and rooms, which deposits could prove detrimental to the health and safety of other persons who may come into contact with such deposits.

e. Booths, cubicles, studios and rooms that are closed while they are in use often contain holes that have been cut or smashed out of the walls or other partitioning material. These holes permit the inhabitant of one booth, cubicle, studio or room to engage in specified sexual activities with the inhabitant of the adjoining booth, cubicle studio or room. These holes promote and encourage specified sexual acts to occur between persons anonymously. Anonymous sexual contact poses a higher risk of spread of communicable diseases, including the AIDS virus, Hepatitis B and other sexually transmitted diseases. Further, the existence of such holes in booths, cubicles, studios and rooms at sexually oriented businesses provides an increased risk that blood, semen, urine or other bodily secretion will be deposited on the floors and walls of such booths, cubicles, studios and rooms, which deposits could prove detrimental to the health and safety of other persons who may come into contact with such deposits.

f. Specified sexual activities often occur at unregulated sexually oriented businesses that provide live adult entertainment. Specified sexual activities include sexual physical contact between employees and patrons of sexually oriented businesses and specifically include “lap dancing” or manual or oral touching or fondling of specified anatomical areas, whether clothed or unclothed. Such casual sexual physical contact between strangers may result in the transmission of communicable diseases, which would be detrimental to the health of the patrons and employees of such sexually oriented businesses.

g. The unregulated operation of sexually oriented businesses, including off-site adult businesses like adult bookstores, adult video stores and adult novelty stores, is associated with an increase in the incidence of sex-related crimes and other crimes and also has a disruptive effect on the surrounding neighborhood by causing excessive noise, parking problems, the presence of discarded sexually oriented material on residential lawns, and the performance of sexual acts in public places, as well as causing a deleterious effect on surrounding businesses and decrease in the value of surrounding property.

h. Sexually oriented businesses that operate in close proximity to each other further contribute to an increase in crime, lower property values, blight and the downgrading of the quality of life and value of property in the adjacent area, and sexually oriented businesses that operate within a short distance of schools, churches, parks, libraries and other public facilities negatively impact such places and have an adverse effect upon persons, particularly children, walking to and from such places.

i. The reasonable regulation and supervision of such sexually oriented businesses tends to discourage prostitution, other sex-related crimes, anonymous and high-risk sexual contact and unsanitary sexual activity, excessive noise and property devaluement, thereby decreasing the incidences of communicable diseases and sex-related crimes, all thereby promoting and protecting the health, safety and welfare of the employees and the members of the public who patronize such businesses and protecting the health, safety and property interests of a city and its residents.

j. Location and zoning regulations alone do not adequately protect the public health, safety and welfare and thus certain requirements with respect to the ownership, employees, facility, operation, advertising, hours of business and other aspects of the sexually oriented business are in the public interest.

(3) The continued unregulated operation of such sexually oriented businesses is and would be detrimental to the health, safety and general welfare of the residents of the city.

(4) The constitution and laws of the state grant to the city powers, especially the police power, to enact reasonable legislation and measures to regulate and supervise sexually oriented businesses in order to protect the public health, safety and welfare.

(5) It is the purpose and intent of the city council, in enacting this article, to regulate sexually oriented businesses to promote the health, safety and general welfare of the residents of the city and to establish reasonable and uniform regulations of such businesses in order to reduce or eliminate the adverse secondary effects of such sexually oriented businesses, protect residents from increased crime, preserve the quality of life, preserve the property values and the character of surrounding neighborhoods and businesses, deter the spread of blight, and protect against the threat to public health from the spread of communicable and social diseases.

(6) It is not the intent of the city council, in enacting this article, to deny to any person rights to speech protected by the United States or state constitutions, nor is it the intent of the council to impose any additional limitations or restrictions on the content of any communicative materials including sexually oriented films, videotapes, books or other materials. Further, by enacting this article, the council does not intend to deny or restrict the constitutionally protected rights of any adult to obtain or view any sexually oriented materials under the United States or state constitutions, nor does it intend to restrict or deny any constitutionally protected rights that distributors or exhibitors of such sexually oriented materials may have to sell, distribute or exhibit such materials.

8.81.030 Definitions

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Adult arcade means any establishment where one or more still or motion picture projectors, slide projectors or similar machines, or other image producing machines, for viewing by five or fewer persons each, are regularly used to show films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depiction or description of specified anatomical areas or specified sexual activities.

Adult cabaret means any nightclub, bar, restaurant or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features:

(1) Persons who appear nude or seminude;

(2) Live performances that are characterized by the exposure of specified anatomical areas; or

(3) Films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depiction or description of specified anatomical areas or specified sexual activities.

Adult Books means any books, magazines, periodicals, pamphlets, or other printed materials that depict, display or describe specified anatomical areas or specified sexual activities.

Adult entertainment means:

(1) Any exhibition of any adult-oriented motion picture, live performance, display or dance of any type that has as a significant or substantial portion of such performance any performance of specified sexual activities or exhibition and viewing of specified anatomical areas, removal of articles of clothing or appearing unclothed, pantomime, modeling, or any other personal services offered customers, when such adult entertainment is held, conducted, operated or maintained for profit, direct or indirect; and

(2) Any amusement machine that is regularly used for presenting material that is characterized by the depiction or description of specified anatomical areas or specified sexual activities, for observation by patrons thereof.

Adult minimotion picture theater means any enclosed building with a capacity of 50 or less persons regularly used for showing films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depiction or description of specified anatomical areas or specified sexual activities, for observation by patrons therein.

Adult motion picture theater means any enclosed building with a capacity of more than 50 persons regularly used for showing films, motion pictures, videocassettes, slides or other photographic reproductions that are characterized by the depiction or description of specified anatomical areas or specified sexual activities, for observation by patrons therein.

Adult Novelties means: (a) instruments, devices, toys or paraphernalia that are designed for or marketed primarily for stimulating human genital organs, sexual arousal or sadomasochistic use; (b) instruments, devices, gag gifts, toys or paraphernalia that depict, display or are shaped in the form of specified anatomical areas; and (c) oils, lotions, gels or creams that are designed for or marketed primarily for use upon specified anatomical areas and intended for stimulating human genital organs, sexual arousal or as an aid to enhance or promote specified sexual activities.

Adult Oriented Store means any establishment having:

(1) a substantial or significant portion of its stock in trade in Adult Books, Adult Videos or

Adult Novelties or any combination thereof;

(2) any portion of its stock in trade in Adult Books, Adult Videos or Adult Novelties and in

conjunction therewith has rooms, designated areas or facilities for the presentation, observation or use by patrons of any item sold or rented in such establishment.

Adult theater means any theater, concert hall, auditorium or similar commercial establishment that regularly features persons who appear nude or seminude or who appear in live performances that are characterized by the depiction or description of specified anatomical areas or specified sexual activities, for observation by patrons therein.

Adult Videos means films, motion pictures, videocassettes, DVDs, software, slides or other photographic reproductions that depict, display or describe specified anatomical areas or specified sexual activities.

Church means any church, synagogue, mosque, temple or building that is used primarily for religious worship and related religious activities.

Employee means any and all persons, including independent contractors, who work in or at or render any services directly related to the operation of a sexually oriented business.

Entertainer means any person who provides adult entertainment within a sexually oriented business, whether or not a fee is charged or accepted for such entertainment and whether or not such entertainment is provided as an employee or independent contractor.

Escort means any person who, for any form of consideration, agrees or offers to act as a social 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 means any person or business that furnishes, offers to furnish, or

advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other consideration.

Inspector means the mayor, chief of police, fire marshal, chief building official, director of health, zoning enforcement officer, their agent or representative, or any city or state employee designated to make inspections for public safety, fire code, building code, public health, zoning purposes, violations of this article, or for violations of other laws and ordinances of the city or state.

Licensed premises means any premises that requires a sexually oriented business license pursuant to this article, including any buildings, parking areas and all other portions of the property of which the licensee has control.

Licensee means any person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on an application for a license.

Live adult entertainment means any live performance by a person who appears nude or seminude or any live performance that is characterized by the exposure of specified anatomical areas.

Massage parlor means any establishment having a fixed business where any person engages in or carries on, or permits to be engaged in or carried on, any method of pressure on, or friction against, or stroking, kneading, rubbing, tapping, pounding, vibrating or stimulating of the external soft parts of the body with the hands or with the aid of any mechanical or electric apparatus or appliance with or without any supplementary aids such as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in this practice. The definition of massage parlor shall not include the practice of massage:

(1) In any state-licensed hospital, nursing home, clinic, medical office or rehabilitation facility;

(2) By a state-licensed physician, surgeon, chiropractor, osteopath, physical therapist, or massage therapist;

(3) By any registered nurse, licensed practical nurse or technician working under the supervision of a state-licensed physician, surgeon, chiropractor, osteopath, physical therapist, or certified massage therapist who shall be present on the licensed premises during the time the service is rendered;

(4) By trainers for any amateur or professional athlete or athletic team or school athletic program; or

(5) By any state-licensed barber or beautician with regard to the massaging of the neck, face, scalp and hair for cosmetic or beautifying purposes.

Masseur means any person who, for any form of consideration, performs massage activities as described in the previous definition of this section.

Minor means any person under the age of 18 years.

Nude model studio means any place where a person, for any form of consideration, regularly appears nude or seminude or displays specified anatomical areas to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. A nude model studio shall not include a modeling class operated by an accredited public or private school or college.

Nudity means:

(1) The appearance of human bare buttocks, anus, genitals, pubic region or the areola or nipple of the female breast; or

(2) A state of dress that fails to opaquely and fully cover human buttocks, anus, genitals, pubic region or areola or nipple of the female breast.

Operator means any person operating, owning, managing, conducting or maintaining a sexually oriented business.

Public building means any building owned, leased or otherwise held by the United States, the state, the city, any other city, any fire district, any school district, or any other agency or political subdivision of the United States or the state, which building is used for governmental purposes.

Public park and recreation area means public land that has been designated for park or recreational activities including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, golf course, basketball or tennis courts, pedestrian or bicycle paths, open space, wilderness areas, or similar public land within the city that is under the control, operation, or management of the city, any other city, or the state.

School means any public, private or parochial educational facility including, but not limited to, child day care facilities, nursery schools, preschools, kindergartens, elementary schools, middle schools, junior high schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, alternative schools, junior colleges, colleges and universities. School includes the school grounds, but does not include any facility used primarily for another purpose and only incidentally as a school.

Seminude means 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.

Sexual activities is not intended to include any medical publications or films or bona fide educational publication or films, nor does it include any art or photography publications that devote at least 25 percent of the lineage of each issue to articles and advertisements dealing with subjects of art or photography. Nor does this definition apply to any news periodical that reports or describes current events and which, from time to time, publishes photographs of nude or seminude persons in connection with the dissemination of the news. Nor does this definition apply to publications or films that describe and report different cultures and which, from time to time, publish or show photographs or depictions of nude or seminude persons when describing cultures in which nudity or seminudity is indigenous to the population.

Sexual encounter establishment means a business or commercial establishment that, for any form of consideration, offers a place where two or more persons may congregate, associate or consort for the purpose of specified sexual activities or the exposure of specified anatomical areas. A sexual encounter establishment shall not include an establishment where a state-licensed medical practitioner, psychologist, psychiatrist, or similar professional person engages in medically approved and recognized sexual therapy.

Sexually oriented business means:

(1) An adult arcade, adult oriented store, adult cabaret, adult minimotion picture theater, adult motion picture theatre, adult theatre, escort agency, massage parlor, nude model studio or sexual encounter establishment;

(2) Any premises to which the public, patrons, or members are invited or admitted and wherein an entertainer provides adult entertainment, or which premises are so physically arranged as to provide booths, cubicles, studios, rooms, compartments or stalls separate from the common areas of the premises for the purpose of viewing adult-oriented motion pictures or wherein an entertainer provides adult entertainment, when such adult entertainment is held, conducted, operated or maintained for profit, direct or indirect; or

(3) Any adult entertainment studio or any premises that are physically arranged and used as such, whether advertised or represented as an adult entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio or any other term of like import.

Specified anatomical areas means:

(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 opaquely covered.

Specified sexual activities means:

(1) Showing of human genitals in a state of sexual stimulation or arousal;

(2) Acts of masturbation, sexual intercourse, sodomy, bestiality, necrophilia, sadomasochistic abuse, fellatio or cunnilingus;

(3) Fondling or touching of another person’s genitals, pubic region, buttocks or female breasts;

(4) Lap dancing; or

(5) Excretory functions as part of or in connection with any of such activities.

8.81.040 Penalties for violation of article

(a) Any licensee, operator, employee or other person who violates any of the provisions of this article shall be subject to a fine of $500 for each such violation.

(b) Each violation of this article shall be considered a separate offense, and any violation continuing more than one hour of time shall be considered a separate offense for each hour of violation.

(c) In addition to any fines or penalties imposed in this section, this article may be enforced by injunctive procedure in the superior court. The city may further recover from any violator any and all costs and fees, including reasonable attorney’s fees, expended by the city in enforcing the provisions of this article.

(d) This article shall not preclude any additional enforcement action taken by any appropriate city, state or federal official conducted pursuant to any applicable ordinance, regulation or law of the city or state or the United States of America.

(e) All remedies and penalties provided for in this section shall be cumulative and independently available to the city, and the city shall be authorized to pursue any and all remedies set forth in this section to the fullest extent allowed by law.

8.81.050 LICENSE

Required.

(a) After the effective date of the ordinance from which this article is derived it shall be unlawful for any person to engage in, conduct or carry on or permit to be engaged in, conducted or carried on, in or upon any premises in the city, the operation of a sexually oriented business without first obtaining a license to operate from the city.

(b) A license may be issued for only one sexually oriented business located at a fixed and certain place. Any person who desires to operate more than one sexually oriented business must have a license for each such business.

(c) It shall be a violation of this article for any owner, operator, entertainer or employee to knowingly work in or about, or to knowingly perform any service directly related to, the operation of any unlicensed sexually oriented business.

(d) Each license shall be specific to a licensee and to a location and may not be sold, assigned or transferred to any other person or location in any way, including, but not limited to:

(1) The sale, lease or sublease of the business;

(2) The transfer of shares, securities or interests that constitute a controlling interest in the business, whether by sale, exchange or similar means; or

(3) The establishment of a trust, gift or other similar legal devise that transfers ownership or control of the business, except for a transfer by bequest or other operation of law upon the death of the licensee or a person possessing the ownership or control of the licensee.

8.81.051 Application

(a) The operator of each sexually oriented business shall submit an application to the town clerk together with an application fee as listed in appendix to this Code prior to the commencement of business or within 60 days of the effective date of the ordinance from which this article is derived for any establishment already open for business. The town clerk shall date stamp the application and shall promptly deliver the application to the mayor or his/her designee. The application shall be made upon a form prepared by the mayor or his/her designee and disseminated by the town clerk.

(b) The application shall be signed and filed by a person having direct control or management of the proposed sexually oriented business. In instances where the applicant is a partnership, limited liability company or corporation, the application shall be signed and filed by a duly authorized partner, member, manager, officer, director, or majority shareholder of such entity, as the case may be. The application shall be sworn to be true and correct by the applicant.

(c) The applicant for a license shall furnish the following information:

(1) Name and business and residence address of the applicant, owner, operator, manager and any other person having direct control or management of the sexually oriented business, including all fictitious names. If the applicant is a partnership, the names of all general partners. If the applicant is a limited liability company, the names of all members and managers of such company. If the applicant is a corporation, the names of all officers, directors and shareholders holding a ten percent or greater interest in the total number of shares of such corporation;

(2) Name and business and residence address of the spouse of each individual named in subsection (c)(1) of this section;

(3) Name and address of all employees and any other persons directly involved in the operation of the sexually oriented business, including all fictitious names;

(4) Written proof that the applicant is at least 18 years of age;

(5) A recent photograph of the applicant;

(6) The applicant’s driver’s license number and social security number or federal employer identification number;

(7) If the applicant is:

a. A partnership, the application shall be accompanied by the partnership agreement, if any;

b. A limited partnership, the application shall specify the name of the partnership, the date and state of the filing of its certificate of limited partnership, and the name and address of its statutory agent for service of process, and shall be accompanied by a copy of the partnership agreement, if any, and by evidence that such partnership is in good standing under the laws of the state;

c. A limited liability company, the application shall specify the name of the company, the date and state of the filing of its articles of organization, and the name and address of its statutory agent for service of process, and shall be accompanied by a copy of the operating agreement, if any, and by evidence that such company is in good standing under the laws of the state;

d. A corporation, the application shall specify the name of the corporation, the date and state of incorporation, and the name and address of its statutory agent for service of process, and shall be accompanied by a copy of its bylaws, if any, and by evidence that such corporation is in good standing under the laws of the state;

e. Operating under a fictitious name, the application shall be accompanied by a copy of the applicant’s recorded trade name certificate.

(8) The applicant’s sexually oriented business or adult entertainment license or permit history, which shall include, but not be limited to whether such person is currently licensed or has previously operated in this or another municipality or state under license; the names and locations of such businesses; whether the applicant has had such license suspended or revoked; the dates of and reasons for such suspension or revocation; and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation. Such history shall include any entity of which the applicant was a partner, member, officer, director or shareholder;

(9) Any criminal convictions of the applicant, operator, employees and other persons directly involved in the management or control of the sexually oriented business, to any crime involving moral turpitude, prostitution, obscenity or other sex-related crimes in any jurisdiction within three years of the date of the filing of the application. Such crimes include, but are not limited to, obscenity, child pornography, prostitution, patronizing a prostitute, promoting or permitting prostitution and sexual assault, in the state, being G.S. §§ 53a-194, 53a-196, 53a-196a, and 53a-196b (obscenity); G.S. §§ 53a-196c and 53a-196d (child pornography); G.S. §§ 53a-82, 53a-83 and 53a-83a (prostitution, patronizing a prostitute, and patronizing a prostitute from a motor vehicle); G.S. §§ 53a-86, 53a-87, 53a-88 and 53a-89 (promoting or permitting prostitution); and G.S. §§ 53a-70, 53a-70a, 53a-70b, 53a-71, 53a-72a, 53a-72b and 53a-73a (sexual assault);

(10) The location of the sexually oriented business to be operated by the applicant, including the street address, legal description of the property, and telephone number, if any;

(11) The exact nature of the entertainment to be conducted at the sexually oriented business;

(12) A sketch or diagram showing the configuration of the premises drawn to a designated scale and with marked dimensions of the interior of the premises, including a statement of total floor space occupied by the business. Such sketch or diagram shall include, without limitation, all doors, windows, bars, stages, manager’s stations, restrooms, dressing rooms, booths, cubicles, rooms, studios, compartments, stalls, overhead lighting fixtures and any areas where patrons are not permitted; and

(13) A statement by the applicant that he is familiar with the provisions of this article, is in compliance with them, and consents to the authority of the city in licensing and regulating the proposed sexually oriented business.

(d) The mayor shall have the right to request additional information and documentation of the applicant and the proposed business to support or clarify any information previously provided.

(e) If a license to operate a sexually oriented business is granted, the information furnished in the application, including employee information, shall be updated within 30 days of any material changes. Such update shall be filed at the office of the city clerk, who shall promptly forward such update to the city manager.

8.81.052 Licensing procedure

(a) The mayor or his/her designee shall be responsible for investigating, granting, denying, renewing, suspending and revoking all sexually oriented business applications and licenses pursuant to this article. Upon receipt of a properly completed application with all required attachments, the mayor or his/her designee shall immediately forward copies of such application to the following city officials for their investigation:

(1) The chief of police shall investigate the criminal convictions, qualifications and suitability of the applicant to be licensed and shall inspect the premises for compliance with all laws and regulations.

(2) The fire marshal shall investigate the compliance of the proposed premises with all applicable fire codes and laws.

(3) The chief building official shall investigate the compliance of the proposed premises with all applicable building codes and laws.

(4) The director of health shall investigate the compliance of the proposed premises with all applicable public health codes and laws.

(5) The zoning enforcement officer shall investigate the compliance of the proposed premises with all applicable zoning regulations and laws and also compliance with all distance requirements set forth in section 8.81.060.

(b) Within 30 days of the date the application was filed, all such investigations to be performed pursuant to subsection (a) of this section shall be completed. At the conclusion of each investigation, each city official shall indicate on the photocopy of the application his approval or disapproval of the application, state the reasons for any disapproval, date it, sign it, and return it immediately to the city manager. A city official shall disapprove an application if he finds that the proposed sexually oriented business will be in violation of any provision of any statute, code, article, regulation or other law in effect in the city, including this article.

(c) Within 45 days of the date the application was filed, the mayor or his/her designee shall render a decision approving or denying such application and shall file such decision with the city clerk and mail such decision to the applicant by certified mail, return receipt requested. If the city manager denies the application, he shall state in writing the reasons for such denial. All copies of the investigations performed pursuant to subsection (b) of this section shall be attached to the mayor’s decision.

(d) The mayor or his/her designee shall issue to the applicant a license to operate a sexually oriented business within 45 days of the date the application was filed if all requirements for a sexually oriented business described in this article are met, unless he finds that:

(1) The applicant is under 18 years of age.

(2) The applicant or any other person who will be directly engaged in the management and operation of the business has been convicted in this or any other state of any of the crimes specified in section 8.81.051 (c) (9), regardless of the pendency of any appeal, within three years of the date the application was filed.

(3) Within five years of the date the application was filed, the applicant or his spouse has been denied a license by the city to operate a sexually oriented business, has had a license revoked by the city, or has failed to correct any material violation of this article for more than 30 days, of which the licensee has received written notice.

(4) Within three years of the date the application was filed, the applicant or his spouse has had a license to operate a sexually oriented business denied or revoked by another municipality or state.

(5) The applicant or his spouse is overdue on payment to the city of any taxes, fees, fines or other penalties relating to the sexually oriented business or the licensed premises.

(6) The business as proposed by the applicant, if permitted, would not have complied with all applicable statutes, codes, ordinances, laws and regulations including, but not limited to, the fire, building, health, and zoning codes of the city, and this article. If the premises are not in compliance, the applicant shall be advised of the reasons in writing and what, if any measures the applicant can take to bring the premises into compliance for a license to issue.

(7) The premises are not in compliance with all distance requirements set forth in section 8.81.060.

(8) The applicant has failed to complete the license application as specified in section 8.81.051(c), has failed to provide any supporting or clarifying documentation when requested by the mayor or his / her designee, or has provided materially false or misleading information in the application.

(9) The application fee has not been paid.

(10) The granting of the application would violate a statute, ordinance or court order.

(11) The applicant, if a limited partnership, limited liability company or corporation, is not in good standing under the laws of the state.

(e) Any failure of the license to issue within 45 days of the date the application was filed shall constitute a denial subject to appeal.

(f) If the sexually oriented business application is denied, the city shall retain one-half of the permit fee for expenses incurred in the investigation of the application and shall return the remainder to the applicant.

(g) When an application is denied solely for reasons stated in subsection (d)(6) of this section and such violation is correctable, the applicant shall be given an additional 30 days from the date of such notification of denial to bring the premises into compliance. Upon verification by inspection that the correction has been made, which shall be determined no later than 48 hours after receipt by the mayor or his / her designee of written notice of such correction, a license shall be issued to the applicant so long as no new violations or other disqualifying factors have occurred within such 30 days.

(h) As a condition of the license, the entire licensed premises shall be open to random physical inspections for compliance with this article by any inspector during all hours when the premises are open for business. Any refusal to allow such an inspection shall constitute a violation of this article.

(i) The license, if granted, shall state on its face the name and residence address of the person to whom it is granted, the expiration date, the address of the sexually oriented business, and the department or public official and telephone number to report any violation of this article. The license shall also include a notice that the subject premises are subject to random inspections by inspectors of the city for compliance with this article.

(j) The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at all times.

8.81.052 Expiration and renewal

(a) Each license issued to a licensee shall expire one year from the date it is issued, unless it is renewed upon application of the licensee accompanied by payment of a renewal fee as listed in appendix D to this Code. Such application and application fee shall be submitted by the licensee to the town clerk at least 30 days before the expiration date of the license, but not more than 90 days before. Provided the application is filed within such time and the renewal fee paid, the mayor or his / her designee shall, prior to the expiration of the previous license, renew the license for the same licensee at the same location for an additional one year, unless the random inspection reports in the licensee’s file reveal uncorrected violations of this article or uncorrected violations of any fire, building, health or zoning codes or regulations, of which the licensee has received written notice, or any condition under section 14-263(d) that could have been grounds for denial of the original application has since become true. If renewed, the mayor or his / her designee shall mail the renewed license to the licensee prior to the expiration date of the previous license. If not renewed, the mayor or his/her designee shall mail a notice of nonrenewal to the licensee by certified mail, return receipt requested, prior to the expiration date of the previous license, stating the reasons for such nonrenewal. No sexually oriented business shall continue operations without a renewed license.

(b) If there are uncorrected violations of this article or uncorrected violations of any fire, building, health or zoning codes or regulations, of which the licensee has received written notice, the license renewal shall be delayed for a maximum of 30 days beyond the original expiration date in order for all corrections to be completed and inspections done to determine compliance. If the licensee does not make such corrections of violations within such 30 days, no license renewal shall be issued. The mayor or his/her designee shall mail a notice of nonrenewal to the licensee by certified mail, return receipt requested, within five days after the extended 30-day period, stating the reasons for such nonrenewal.

(c) Notwithstanding the provisions in subsection (b) of this section, in no instance shall a renewal be issued to a licensee who, within the one-year period of the previous license has had two or more material violations of this article, to which the licensee has received written notice, or has had one or more uncorrected material violations of this article pending for over 30 days.

(d) Should a license not be renewed for any violation of this article, no license shall issue for the same licensee for five years from the expiration of the previous license.

8.81.053 Suspension and revocation

(a) The mayor or his/her designee may suspend a sexually oriented business license for a period not to exceed 30 days upon his determination that a licensee, operator or employee has materially violated any part of this article. The mayor or his/her designee shall issue such suspension in writing stating the reasons therefore and shall notify the licensee by certified mail, return receipt requested, addressed to the licensee at his business or residence address, or by service by any process server at the usual place of abode of the licensee or at the licensed premises. If a suspension is issued for a correctable violation, the mayor or his/her designee, within 48 hours of his receipt of written notice that the correction has been made, shall terminate such suspension upon verification by inspection. No sexually oriented business shall continue operations while under suspension.

(b) The mayor or his/her designee shall revoke any license where any of the following occur:

(1) It is discovered that materially false or misleading information or data was given on, or material facts were omitted from, any application for a sexually oriented business license.

(2) Any taxes, fees, fines or other penalties relating to the licensed premises or required to be paid by this article become more than 30 days delinquent.

(3) A licensee, operator, employee or other person directly involved in the management or control of the sexually oriented business has been convicted of any crime specified in section 8.81.051(c)(9).

(4) A licensee has had within a one year period two or more material violations of this article, to which the licensee has received written notice.

(5) A licensee has one or more uncorrected material violations of this article pending for over 30 days, to which the licensee has received written notice.

(6) A licensee has failed to correct within 30 days any violation for which his license was suspended pursuant to subsection (a) of this section.

(7) The license or any interest therein is transferred in any way.

(8) A licensee, operator or employee has knowingly allowed any live performance or conduct featuring any specified sexual activities to occur on the licensed premises.

(9) A licensee, operator or employee has knowingly allowed any illegal activity to occur on the licensed premises including, but not limited to, prostitution, gambling, or the possession, use or sale of controlled substances.

(10) A licensee, operator or employee has knowingly operated the sexually oriented business while the business’s license was under suspension.

(c) At least ten days prior to the revocation of any license, the mayor or his / her designee shall issue such revocation in writing stating the reasons therefore and shall notify the licensee by certified mail, return receipt requested, addressed to the licensee at his business or residence address, or by service by any process server at the usual place of abode of the licensee or at the licensed premises.

(d) Subject to section 8.81.054 (f), no sexually oriented business shall continue operations after its license has been revoked, and no new license shall be issued for the same licensee for five years from the date of revocation.

8.81.054 Appeal

(a) Within five days of receipt of notification of a denial, nonrenewal, suspension or revocation of a license, the licensee may contest such decision by submitting a written application to the town clerk requesting a public hearing before the city council.

(b) The public hearing shall be scheduled to take place no later than 20 days from the date of the application for such hearing. Not less than ten days before the date of such hearing, a notice of hearing shall be sent to the licensee by certified mail, return receipt requested, and posted in a conspicuous place on the proposed or licensed premises.

(c) In such application the licensee may request that the mayor or his / her designee or any other city official who investigated the application or inspected the premises shall be present at the public hearing. At such hearing, the licensee shall have the opportunity to present evidence on his behalf and shall have the right to cross examine all city officials and witnesses. The city council shall conduct the hearing in the order and form and with such methods of proof as it deems fair and appropriate. The rules regarding the admissibility of evidence shall not be strictly applied, but all testimony shall be given under oath or affirmation.

(d) Immediately following such hearing, the city council shall enter its vote to either sustain or overrule the denial, nonrenewal, suspension or revocation. Within five days after such hearing, the city council shall issue written notice of its final decision, stating the reasons therefore, and shall forward such decision to the licensee by certified mail, return receipt requested. If the denial, nonrenewal, suspension or revocation is overruled, the mayor or his / her designee shall immediately issue such license or renewal of license, or revoke the suspension or revocation, as the case may be.

(e) The decision of the city council may be appealed to the superior court within 20 days of such written notice of such decision.

(f) During the pendency of any appeal of a nonrenewal, suspension or revocation, the operations of the sexually oriented business may be maintained by the licensee, unless otherwise ordered by the superior court.

8.81.060 Location

(a) No sexually oriented business shall be permitted on a site that is less than 1,500 feet from any other site containing a sexually oriented business.

(b) No sexually oriented business shall be permitted on a site that is less than 1,000 feet from any site containing a church, school, public building, public park or recreation area.

(c) No sexually oriented business shall be permitted on a site that is less than 750 feet from any residentially zoned land as defined in the city zoning regulations.

(d) No sexually oriented business shall be permitted within the same building, structure or portion thereof that is used for residential purposes or that contains another sexually oriented business.

(e) All distances contained in this section shall be measured by taking the nearest straight line between the respective lot boundaries of each site.

(f) The city zoning regulations, as may be amended from time to time, are hereby incorporated by reference as a part of this article, and any violation of such regulations shall be deemed a violation of this article.

8.81.070 Existing businesses

(a) Any sexually oriented business lawfully operating on the effective date of the ordinance from which this article is derived but in violation of section 14-291 shall be deemed a nonconforming use. No nonconforming use shall be increased, enlarged, extended or altered except to make it a conforming use.

(b) Any sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the subsequent location of any church, school, public building, public park or recreation area within 1,000 feet of such business, or of any residentially zoned land within 750 feet of such business. However, this subsection applies only to the renewal of a valid license and does not apply to a license application submitted after a license has expired or has been revoked.

(c) Any existing sexually oriented business on the effective date of the ordinance from which this article is derived shall submit an application for a license pursuant to section 14-261 and shall comply with all regulations herein within 60 days of the effective date of the ordinance from which this article is derived. Otherwise, such existing sexually oriented business shall cease operations.

8.81.080 Operating requirements

The following requirements shall apply to all sexually oriented businesses within the city:

(1) Generally.

a. No licensee, operator or employee of a sexually oriented business shall perform or permit to be performed, offer to perform, or allow patrons to perform any live performance or conduct featuring any specified sexual activities on the licensed premises.

b. Every sexually oriented business shall comply with all applicable statutes, codes, ordinances, laws and regulations including, but not limited to, the fire, building, health, and zoning codes of the city and state.

c. Every sexually oriented business shall be physically arranged in such a manner that the entire interior portion of any room or other area used for the purpose of viewing Adult Books, Adult Videos or Adult Novelties or other types of adult entertainment shall be clearly visible from the common areas of the premises. Visibility into such areas shall not be blocked or obscured by doors, curtains, partitions, drapes or any other obstruction whatsoever. Such areas shall be readily accessible at all times to employees and shall be continuously open to view in their entirety. It shall be a violation of this article to install enclosed booths, cubicles, rooms or stalls within sexually oriented businesses, for whatever purpose, but especially for the purpose of providing for the secluded viewing of adult-oriented motion pictures or other types of adult entertainment.

d. Every sexually oriented business, including common areas, entryways, parking areas, restrooms, and any room or other area used for the purpose of viewing adult-oriented motion pictures or other types of adult entertainment, shall be well-lighted. The entire 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 one footcandle as measured at the floor or ground level. It shall be the duty of the operator and his agents to ensure that such illumination is maintained at all times that any patron is present on the premises.

e. No booths, cubicles, rooms or stalls used for the purpose of viewing adult-oriented motion pictures or other types of adult entertainment shall be occupied by more than one person at any one time. No holes shall be allowed in the walls or partitions that separate each such room from any adjoining room.

f. No sexually oriented business shall be conducted in such a manner that permits the observation of any material depicting specified anatomical areas or specified sexual activities from outside of the building that houses the sexually oriented business.

g. No sexually oriented business shall advertise the availability at such business of any activity that would be in violation of this article or any state or federal law. Nor shall any exterior sign, display, decoration, show window or other advertising of such business contain any material depicting, describing or relating to specified anatomical areas or specified sexual activities.

h. No alcoholic beverage or other intoxicant shall be displayed, served, ingested or sold on the premises of any sexually oriented business unless permitted by the state. No licensee, operator or employee shall be under the influence of any alcoholic beverage or other intoxicant while working at a sexually oriented business. No patron who is under the influence of any alcoholic beverage or other intoxicant shall be allowed to enter any sexually oriented business.

i. No gambling shall be permitted by any person in any sexually oriented business.

(2) Employees.

a. The licensee and operator shall be responsible for the conduct of all employees while on the licensed premises. Any act or omission of any employee constituting a violation of the provisions of this article shall be deemed the act or omission of the licensee and operator, when such licensee or operator knew or should have known of such act or omission, for purposes of determining whether the operating license shall be renewed, suspended or revoked and whether the licensee and operator shall be subject to the penalties imposed by this article.

b. No licensee or operator shall knowingly employ in any sexually oriented business any person who, within three years of the commencement of such employment, has been convicted in this or any other state of any of the crimes specified in section 14-262(c)(9), regardless of the pendency of any appeal.

(3) Minors.

a. No licensee, operator or employee of a sexually oriented business shall allow or permit any minor to enter into or in any way loiter in or on any part of the licensed premises, purchase goods or services at the licensed premises, or work at the licensed premises as an employee.

b. Every sexually oriented business shall display a sign outside each entrance of such business bearing the words “Sexually Oriented Business. Persons Under 18 Not Admitted” in legible letters between two and six inches tall.

(4) Hours of business. No sexually oriented business shall open to do business before 10:00 a.m., Monday through Saturday, nor shall it remain open after 1:00 a.m. Tuesday through Friday, nor after 2:00 a.m. on Saturday, Sunday or any legal holiday as designated in G.S. § 1-4.

8.81.081 Operating requirements – Live adult entertainment

In addition to the requirements contained in section 8.81.080, the following requirements shall apply to all sexually oriented businesses within the city containing live adult entertainment:

(1) No person shall perform live adult entertainment for patrons of a sexually oriented business except upon a stage at least 18 inches above floor level and separated from any and all such patrons by a minimum distance of four feet or as approved by the liquor division of the state department of consumer protection.

(2) Separate dressing room facilities for male and female entertainers shall be provided that shall not be occupied or used in any way by any one other than such entertainers.

(3) No entertainer shall expose any specified anatomical areas to any patron of a sexually oriented business either before or after a performance including, but not limited to, when such entertainer is entering or exiting the stage.

(4) No entertainer, either before, during or after a performance, shall have physical contact with any patron of a sexually oriented business while on the licensed premises.

(5) No employee of any sexually oriented business shall engage in any live adult entertainment while acting as a waiter, host or bartender for such business.

8.81.082 Operating requirements – Massage parlors

In addition to the requirements contained is section 8.81.080, the following requirements shall apply to all massage parlors within the city:

(1) Facility requirements.

a. Construction of rooms used for toilets, tubs, steam baths and showers shall be waterproofed with approved waterproof materials.

b. Toilet facilities shall be provided in convenient locations. When five or more persons of different sexes are on the premises at the same time, separate toilet facilities shall be provided. Toilets shall be designated as to the sex accommodated therein.

c. Lavatories or wash basins provided with both hot and cold running water shall be installed in either the toilet room or vestibule. Lavatories or wash basins shall be provided with soap in a dispenser and with sanitary towels.

(2) Operating requirements.

a. Every portion of the massage parlor, including appliances and apparatus, shall be kept clean and operated in a sanitary condition. Adequate lighting shall be provided, and each room or enclosure where a massage is administered shall have an illumination of not less than one footcandle as measured at the floor level while such room or enclosure is occupied.

b. All employees of the massage parlor shall be clean and wear clean outer garments, which use is restricted to the massage parlor. Provisions for a separate dressing room for each sex must be available on the licensed premises with individual lockers for each employee. Doors to such dressing rooms shall open inward and shall be self-closing.

c. All employees and masseurs shall be modestly attired. Diaphanous, flimsy, transparent, form-fitting, or tight clothing is prohibited. Clothing must cover the employee’s or masseur’s chest at all times. Hemlines of skirts, dresses or other attire may be no higher than three inches above the top of the knee.

d. All specified anatomical areas of patrons must be covered by towels, cloth or undergarments when in the presence of any employee or masseur. It shall be unlawful for any person in a massage parlor to expose his specified anatomical areas to any other person or for any person to expose the specified anatomical areas of another person.

e. It shall be unlawful for any person in a massage parlor to engage in any specified sexual activities or to place his hand upon, to touch with any part of his body, to fondle in any manner, or to massage any specified anatomical areas of any other person.

f. All massage parlors shall be provided with clean, laundered sheets and towels in sufficient quantity and shall be laundered after each use thereof and stored in an approved sanitary manner.

g. Wet and dry heat rooms, shower compartments and toilet rooms shall be thoroughly cleaned each day business is in operation. Bathtubs shall be thoroughly cleaned after each use.

h. No massage parlor shall place, publish, or distribute or cause to be placed, published, or distributed any advertising material that depicts any portion of the human body or contains any written text that would reasonably suggest to prospective patrons that any services are available other than those services allowed in this ordinance, or that employees or masseurs are dressed in any manner other than described in subsection (2)c of this section.

i. All services enumerated in this section shall be performed in a cubicle, room, booth or area within the massage parlor, which cubicle, room, booth or area shall have transparent doors or walls so that all activity therein shall be visible from outside the same.

j. No massage parlor shall carry on, engage in, or conduct business on Sunday nor on any other day before 8:00 a.m. or after 9:00 p.m.

k. A full schedule of service rates shall be posted in a prominent place within the massage parlor in such a manner as to come to the attention of all patrons. No charges other than the specified rates for specified services shall be allowed and all patrons shall be notified of the full cost of services prior to the rendering of any service.