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Chapter 29 - Explicit Sexual Materials Display, Sexually Oriented Business
Article I - In General
- § 28-1. Purpose and findings.
- § 28-2. Definitions.
- § 28-3. Displaying of explicit sexual materials generally.
- § 28-4. License required for sexually oriented business.
- § 28-5 License required for managers, servers and entertainers.
- § 28-6. License application; owners, servers, entertainers or managers.
- § 28-7. Application processing.
- § 28-8. Standards of conduct.
- § 28-9. Ventilation and sanitation requirements.
- § 28-10. Performances; closed rooms or booths prohibited, when.
- § 28-11icense – posting, revocation, when.
- § 28-12 Signs required.
- §§ 28-13 - 28-14. Reserved.
ARTICLE I IN GENERAL
Sec. 29-1. Purpose and Findings.
(a) Purpose: It is the purpose of this Chapter to regulate the display of explicit sexual material and sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of Rolla, Missouri, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the City. The provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including explicit sexual materials. Similarly, it is not the intent nor effect of this Chapter to restrict or deny access by adults to explicit sexual 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 or effect of this Chapter to condone or legitimize the distribution of obscene or offensive material of a sexual nature.
(b) Findings: Based on evidence concerning the adverse secondary effects of adult uses on communities as outlined in numerous studies/reports generally available for consideration, and on findings incorporated in a series of cases as found and included herein by reference to the IML Model Ordinance on Sexually Oriented Business Regulation, the City Council finds that:
(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is no mechanism to make the owners of these establishments responsible for the activities that occur on their premises.
(2) Employees of certain sexually oriented businesses engage in higher incidences of certain types of illicit sexual behavior than employees of other establishments and that by offering or providing such locations may thereby create unhealthy conditions, unless properly regulated.
(3) At least fifty (50) communicable diseases may be spread by activities occurring in sexually oriented businesses including but not limited to, syphilis, gonorrhea, human immunodeficiency virus infections (HIV-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections. According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(4) The number of cases of syphilis and other sexually transmitted diseases has been on the rise or remain at high levels in the United States.
(5) The findings noted above raise substantial governmental concerns by establishing that sexually oriented businesses have operational characteristics that should be reasonably regulated in order to protect the public interest and to address substantial governmental concerns.
(6) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually oriented businesses. Further, such a licensing procedure will place an incentive on the operators to see that the sexually oriented business is managed in a way consistent with the health, safety, and welfare of its patrons and employees, as well as the general public. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.
(7) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult theaters.
(8) Requiring licensees of sexually oriented businesses to keep information regarding current employees and past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.
(9) The disclosure of certain information by those persons ultimately responsible for the day to day operation and maintenance of the sexually oriented business, where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually transmitted diseases.
(10) In the prevention of the spread of communicable diseases, it is desirable to obtain a limited amount of information regarding certain employees who may engage in conduct that this Chapter is designed to prevent, or who are likely to be witnesses to such conduct.
(11) The fact that an applicant for an adult use license as been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this Chapter.
(12) The barring of such individuals from the management of adult uses serves as a deterrent to, and prevents conduct that leads to the transmission of sexually transmitted diseases.
(13) The general welfare, health, morals, and safety of the citizens of Rolla, Missouri will be promoted by the enactment of this Chapter.
(Ord. 1072; Ord. 3029; Ord. 3565)
Sec. 29-2. Definitions.
Words and phrases contained in this Chapter shall be deemed to have certain meanings, as follows:
(a) Explicit sexual material means:
(1) Any picture, photograph, or other pictorial representation, that depicts actual or simulated "specified sexual activities"; or
(2) Any portion of a book, magazine, newspaper or other printed or written material; or any video tape, DVD, or any other recorded medium whose content is made up in whole or in dominant part of depictions or descriptions of "specified sexual activities" or "specified anatomical areas".
(b) Sexually oriented business means any business enterprise that:
(1) Has as a regular and substantial business purpose the sale, display or rental of goods that are designed for use in connection with "specified sexual activities," or that emphasize matters depicting, describing or relating to "specified sexual activities" or "specified anatomical areas"; or
(2) Has one of the following as a regular and substantial business purposes: the providing of entertainment where the emphasis is on performances, live or otherwise, that depict, portray, exhibit or display "specified anatomical areas" or "specified sexual activities"; or the providing of services that provide "specified sexual activities" or "specified anatomical areas" ancillary to other pursuits, or allow participation in "specified sexual activities" ancillary to other pursuits,
(3) The definition of “Sexually oriented business” also includes, but is not limited to, any and all of the following as defined herein:
(i) "Adult retail establishments" means an establishment that has as a regular and substantial business purpose, offers for sale or rent, any one or more of the following: instruments, devices, gifts, or paraphernalia that are designed for use in connection with "specified sexual activities" or clothing that graphically depicts "specified anatomical areas" or any materials, such as printed materials, photographs, slides, films, videotapes or DVD, sold or rented in an adult bookstore, adult news rack, or adult news stand that are characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas".
(ii) "Adult entertainment business" means any establishment to which the general public, patrons or members are invited or admitted and wherein an entertainer provides "adult entertainment", as defined herein. These establishments include, but are not limited to, adult theater, adult entertainment cabaret, adult entertainment studio, adult encounter parlors, and body painting studios.
(iii) "Adult motion picture theater" means an establishment containing a room that seats facing a screen or projection areas, where a regular and substantial portion of its business is the exhibition to customers of films, videotapes, or other such devices that are intended to provide sexual stimulation or sexual gratification to the customers and that are distinguished by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas".
(iv) "Bath house" means an enterprise where a regular and substantial portion of its business is offering baths with other persons present who are nude or displaying "specified anatomical areas".
(v) "Adult motel" means an enterprise where a regular and substantial portion of its business is offering public accommodations for consideration for the purpose of viewing closed circuit television transmissions, films, motion pictures, videotapes, slides or other photographic reproductions that are distinguished or characterized by an emphasis on the depiction or description of "specified sexual activities" or "specified anatomical areas" and rents room accommodations for less than six hours at a time.
(c) Adult entertainment means any live or recorded exhibition, performance, display or dance of any type, including but not limited to, talking, singing, reading, listening, posing, massaging, serving food or beverages, soliciting for the sale of food, beverages or entertainment, pantomiming, modeling, removal of clothing, or any service offered for amusement on a premises where such exhibition, performance, display or dance is intended to seek to arouse or excite the sexual desires of the entertainer, other entertainers or patrons, or if the entertainment involves a person who is nude or in such attire, costume or clothing as to expose to view any portion of the human genitals, pubic region, vulva, pubic hair, buttocks, female breast or breasts below a point immediately above the top of the areola or nipple or the human male genitals in a discernibly erect state, even if completely and opaquely covered to include, but not limited to establishments commonly known as gentlemen's clubs, juice bars, and adult book stores, etc
(d) Employee means any and all persons, including managers, entertainers and independent contractors, who work in or at or render any services directly related to the operation of an adult entertainment business.
(e) Entertainer means any person who provides adult entertainment within adult entertainment premises as defined in this section whether or not a fee is charged or accepted for entertainment.
(f) Knowingly means having knowledge of the character and content of any material described herein or failure on notice to exercise reasonable inspection, which would disclose the content and character of the same.
(g) Manager means any person who manages, directs, administers, or is in charge of the affairs and/or conduct of any portion of any activity involving adult entertainment occurring at any adult entertainment premises.
(h) Material means any book, magazine, or other printed or written material, or any picture, drawing, photograph, videotape, or other pictorial representation, figure, object or article.
(i) Operator means any person who manages, directs, administers, or is in charge of the affairs and/or conduct of any portion of any activity involving adult entertainment occurring at any adult entertainment premises.
(j) Person means any individual partnership, corporation, trust, incorporated or unincorporated association marital community joint venture, governmental entity, or other entity or group of persons however organized
(k) Public place means any area generally visible to public view and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, and automobiles whether moving or not.
(l) Sadomasochistic abuse means flagellation or torture by or upon a person who is nude or clad in under?garments or in revealing or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
(m) Server means any person who serves food or drink at an adult entertainment business.
(n) Specified anatomical areas means (1) uncovered or exposed human genitals, pubic region or pubic hair; or buttock; or female breast or breasts below a point immediately above the top of the areola or nipple, or any combination of the foregoing; or (2) human male genitals in a discernible erect state, even if completely and opaquely covered.
(o) Specified sexual activities means sexual conduct, being actual or simulated, acts of human masturbation, sexual intercourse, or physical contact, in an act of apparent sexual stimulation or gratification, with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast of a female, or any sadomasochistic abuse or acts including animals or any latent objects in an act or apparent sexual stimulation or gratification, as such terms are defined in the pornography and related offenses chapter of the Missouri Criminal Code.
(p) Substantial business purpose means 1) ten percent (10%) or more of the gross floor area is devoted to that purpose; or 2) ten percent (10%) or more of the retail floor space is devoted to that purpose; or 3) ten percent (10%) or more of the gross sales of the business are derived from that purpose
(q) Display means:
(1) To expose in whole or in part; or
(2) To permit an unfolding, viewing or examination.
(Ord. 2004; Ord. 3565, §1)
Sec. 29-3. Displaying of explicit sexual materials generally
(a) Display. It is unlawful for a person knowingly to:
(1) Display any explicit sexual material or sadomasochistic abuse at news stands or any other business establishment frequented by minors under the age of eighteen (18) years or where said minors are or may be invited as a part of the general public; or
(2) Permit or authorize the display of any explicit sexual material or sadomasochistic abuse at news stands or any other business establishments frequented by minors under the age of eighteen (18) years or where said minors are or may be invited as a part of the general public; or
When requested by the police department of the City, to fail to promptly remove from display from property in his possession or under his control, any explicit sexual material or sadomasochistic abuse, at newsstands or other business establishments frequented by minors under the age of eighteen (18) years or where said minors are or may be invited as a part of the general public.
(b) Removal. Where it appears that this Chapter or any part of this Chapter is being or about to be violated, the mayor or city attorney of the City of Rolla, may commence and maintain, in the name of the City, an action in the circuit court to enjoin the display of any explicit sexual material. No provisions of this Section shall be construed to prohibit the prosecution for violation of the provisions of this Section in the municipal court.
(c) Penalty. Any person violating this Chapter shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than two hundred dollars ($200.00) or be imprisoned in jail for not less than five (5) days or be punished by both such fine and imprisonment or be fined not more than five hundred dollars ($500.00) or be imprisoned in jail for not more than sixty (60) days or be so punished by both such fine and imprisonment.
(d) Employees. No employee of any business responsible for selling or renting sexually explicit material shall be less than 18 years of age.
(e) Restrictions. Nothing in this Chapter shall be construed so as to prohibit or restrict any political subdivision or any department, agency, office or facility thereof, or any employee or agent thereof when engaged in the performance of his official duties, or any person in the conduct of a legitimate activity for bona?fide educational, scientific or medical purposes. (Ord. 3565, §1)
Sec. 29-4. License required for sexually oriented business.
(a) It shall be unlawful for any person to operate or maintain a sexually oriented business in the City unless the owner, operator or lessee thereof has obtained an adult entertainment business license from the City, or to operate such business after such license has been revoked or suspended by the City.
(b) It shall be unlawful for any person to knowingly work as an entertainer, server or manager at a sexually oriented business unless said business is licensed in the City.
(c) It shall be prima facia evidence that any sexually oriented business that fails to post the required adult entertainment business license in the manner prescribed herein shall be operating unlawfully. In addition it shall be prima facia evidence that any entertainer, employee or manager who performs any service or entertainment in a sexually oriented business in which an adult business license is not posted as specified herein, shall have knowledge that such business is not licensed.
(d) Any licensed sexually oriented business shall be deemed to have consented to a periodic inspection of the business premises by appropriate City officials. This inspection shall take place during hours when such sexually oriented business is open to the public, unless otherwise requested by the sexually oriented business, and shall not unreasonably interfere with the conduct of such business. (Ord. 3565, §1)
Sec. 29-5. License required for managers, servers and entertainers.
It is unlawful for any person to work as an entertainer, server or manager at a sexually oriented business without first obtaining a license to do so from the City, or to work as an entertainer, server or manager at a sexually oriented business after such person's license to do so has been revoked or suspended.
The license year for all fees required under this chapter shall be from January 1 through December 31.
(a) The classification of licenses and fees for each shall be as follows:
Adult entertainment business license fee is $500.00 per year.
Adult entertainment manager's license fee is $50.00 per year.
Adult entertainer's license fee is $20.00 per year.
Adult entertainment server's license fee is $20.00 per year.
(b) Fees shall be paid by certified/cashier check or money order. The application is not complete until the fee is paid. Licenses are for specific locations as indicated on the license and are nontransferable. Any change in the type of sexually oriented business shall invalidate the adult business license. No more than one sexually oriented business may occupy a business premise at one time. (Ord. 3565, §1)
Sec. 29-6. License application: owners, servers, entertainers or managers.
(a) A prospective licensee (owner, server, entertainer or manager) shall provide a notarized application to the Rolla Police Department and Collector of the City of Rolla with his or her name, address (mailing and residence), phone number, principal occupation, recent photograph (2" X 3" color), date of birth, place of birth, driver's license, social security number, signed permission for FBI check and similar information for all partners or stockholders in the venture, as well as a description of the proposed business.
(b) A statement from the applicant, that the applicant has not been convicted of, released from confinement for conviction of, or diverted from prosecution on:
(1) A felony criminal act within five years immediately preceding the application, or a misdemeanor criminal act within two years immediately preceding the application where such felony or misdemeanor criminal act involved sexual offenses, prostitution, sexual abuse of a child, pornography or related offenses as defined in the Missouri Criminal Code, or involved controlled substances or illegal drugs or narcotics offenses as defined in the Missouri Controlled Substances Act or other statutes or ordinances.
(2) Upon submission of each such application, the Police Department shall review the information contained therein and verify the qualifications of the applicant. The City Council shall, within 45 days, consider the application at a regular session. The applicant shall be present in person at the meeting when said application is considered by the City Council. If the application meets all the requirements as set forth in this Chapter, the City Council may issue a license for operation of the sexually oriented business. Those opposing such a license could present objections at this time. Granting the license requires a super majority vote.
(c) No person is eligible nor shall a license be issued to a sexually oriented business applicant if one or more of the following conditions exist:
(1) The applicant's premises is located within seven hundred fifty (750) feet of a school, church, hospital, City Park, or licensed childcare center or property zoned for residential use as measured in a straight line of property boundary.
(2) The applicant's premises is located within 1,000 feet of any other sexually oriented business for which there is a license issued.
(3) The applicant failed to supply all of the information requested on the application.
(4) The applicant gave material false, fraudulent or untruthful information on the application.
(5) The applicant' s proposed business premises does not comply with or meet the requirement of the applicable health, zoning, building code, fire and property maintenance ordinances of the City of Rolla.
(6) The applicant has been convicted, released from incarceration for conviction, or diverted on any of the crimes set forth in said section.
(7) The applicant has had an adult entertainment license revoked or suspended in this City or any other City or County during the past five years.
(8) The facility shall be designed in such a fashion that all openings, entries and windows prevent view into such facilities from any pedestrian, sidewalk, walkway, street or other public area. No business activities shall take place outside the sexually oriented business visible from the exterior.
(9) The facility in which such a use is located shall be limited to one (1) wall mounted advertising sign no greater than one (1) square foot of sign per linear foot of wall length, not to exceed a total of fifty (50) square feet, said sign shall not flash, blink or move by mechanical means and shall not extend above the roof line of the building Further, no merchandise or pictures of products or entertainment on the premises shall be displayed in window areas or any area where such merchandise or pictures can be viewed from the sidewalk in front of the building. No flashing lights and/or lighting that leaves the impression of motion or movement shall be permitted.
(10) Lighting in the parking area must provide a minimum light level of 0.25 foot candles over the entire parking area, but in no point shall the light level exceed 3.0 foot?candles, nor shall any increase in light levels or visible glare be permitted at the lot line. The interior premises of sexually oriented businesses must be equipped with overhead lighting of sufficient intensity to illuminate every place to which customers are permitted access at an illumination of not less than one foot candle as measured at the floor level, and such illumination must be maintained at all times that any customer or patron is present in or on the premises.
(11) No owner, operator, manager or other person in charge of the premises of a sexually oriented business premises shall:
(i) Knowingly permit alcoholic liquor or cereal malt beverages to be brought upon or consumed on the premises, (unless otherwise permitted pursuant to Chapter 4, Alcoholic Beverages, of the City Code).
(ii) Knowingly allow or permit the sale, distribution, delivery or consumption of any controlled substance or illegal drug or narcotic on the premises.
(iii) Knowingly allow or permit any person under the age of 18 years of age to be in or upon the premises in any capacity as entertainer, server or customer.
(iv) Knowingly allow or permit any act of prostitution or patronizing prostitution on the premises, or
(v) Knowingly allow or permit a violation of this Chapter or any other City ordinance provision or state law.
(12) Hours of operation shall not exceed 10 A.M. to 1 A.M.
(Ord. 3565, §1)
Sec. 29-7. Application processing.
(a) Upon receipt of a complete application for an adult entertainment business license, the Finance Department shall transmit one copy of the application to the Police Department for investigation of the application and one copy to the Codes Administrator.
(b) It shall be the duty of the Police Chief or a designee to investigate the application to determine whether the information contained therein is accurate and whether the applicant has qualified to be issued the license. The results of this investigation shall be forwarded to the Finance Department no later than ten (10) working days from the application date.
(c) It shall be the duty of the Codes Administrator to determine compliance with the requirements of this Chapter and the applicable health, zoning, building code, fire and property maintenance ordinances of the City. The Codes Administrator shall provide his report to the Finance Department within ten (10) working days from the application date.
(d) Upon receipt of these reports, the Finance Department shall either issue or deny the license, provided the license applications for sexually oriented businesses, entertainers, servers, and managers shall be approved or disapproved within forty?five (45) days from the filing date. If the license is disapproved, the applicant shall be notified in writing by certified mail to the applicant's last known address, and the notification shall state the basis for disapproval. (Ord. 3565, §1)
Sec. 29-8. Standards of conduct
The following standards of conduct shall be used by all adult entertainment business licensees, their employees and all sexually oriented business managers, servers and entertainers and patrons of sexually oriented businesses while on or about the premises of the establishment:
(a) Any manager, server or entertainer issued a license by the City under the provisions of this Chapter shall, at all times while working in a sexually oriented business, have in their possession a valid Identification card issued by the City, bearing the permit number, the signature of the City Clerk, individual's name, age, weight, eye color, and height. Such card shall be laminated to prevent alteration.
(b) No manager, employee, server, entertainer or patron in a sexually oriented business, other than a licensed bath house, shall appear nude, unclothed, in less than opaque attire or in any fashion that exposes to view any "specified anatomical area”.
(c) No manager, employer, server, entertainer or patron of a sexually oriented business shall perform any "specified sexual activities", wear or use any device or covering exposing to view an image that simulates any "specified anatomical areas", use artificial devices or other objects to perform or depict any "specified sexual activities", or participate in any act of prostitution.
(d) No manager, employee, server, entertainer or patron of a sexually oriented business shall knowingly touch, fondle or caress any "specified anatomical area" of another person whether such "specified anatomical area" is clothed, unclothed, covered or exposed to view.
(e) A manager shall be on duty at all times on the premises when the sexually oriented business is open. The manager shall verify that any person who provides adult entertainment or works as a server possesses a current and valid adult entertainment license. It shall also be the manager's duty to insure that no person under the age of 18 enters the premises. (Ord. 3565, §1)
Sec. 29-9. Ventilation and sanitation requirements.
The premises of all sexually oriented businesses shall be kept in a sanitary condition. Separate dressing rooms and restrooms for men and women shall at all times be maintained and kept in a sanitary condition. (Ord. 3565, §1)
Sec. 29-10. Performances; closed rooms or booths prohibited, when.
(a) Performances shall always take place on a stage of at least 24 inches above the floor level of the audience. Entertainers shall be at least 10 feet from customers and shall not touch customers or be touched by customers. Customers shall not be permitted on the stage at any time. No entertainer shall be permitted to demand or collect any payment or gratuity from any employee or patron of the sexually oriented business.
(b) The premises of all sexually oriented businesses shall be physically arranged so that the entire interior portion of any booths, cubicles, room or stalls are visible from a common area. The use of video cameras to meet this requirement is not allowed. Visibility shall not be blocked or obscured by doors, curtains, drapes or any other obstruction. The manager shall be required to position himself/herself so as to be able to view the entire interior portion of the premises while on duty. (Ord. 3565, §1)
Sec. 29-11. License ? posting, revocation, when.
(a) Every person, corporation, partnership, or association licensed under this Chapter as a sexually oriented business shall post such license in a conspicuous place and manner on the premises of the business.
(b) Any person found to be in violation of any provision of this Code, though he may have been previously issued a license as provided herein shall have his license revoked immediately forthwith. Prior to revocation said licensee shall have notice of said violations, and the matter of revocation shall be placed before the next regularly scheduled meeting of the City Council for hearing. Should the City Council find said violations did occur, and upon motion of the City Council after hearing, the revocation shall be issued from the City Clerk, all licenses previously issued surrendered, for a period of one (1) year unless the City Council may by motion direct a shorter time. (Ord. 3565, §1)
Sec. 29-12. Signs required
All sexually oriented businesses shall have conspicuously displayed in the common area at the entrance to the premises a sign of which uppercase letters shall be at least two inches high and lowercase letters at least one inch high, which read as follows:
THIS SEXUALLY ORIENTED BUSINESS IS REGULATED AND
LICENSED BY THE CITY OF ROLLA, MISSOURI
Not permitted to engage in any type of sexual conduct or prostitution on the premises or to fondle caress or touch the breasts, pubic region, buttocks or genitals of any employee, patron, or other entertainer or to permit any employee, patron, or other entertainer to fondle, caress or touch the breasts, pubic region, buttocks or genitals of said entertainer.
Not permitted to be nude, unclothed, or in less than opaque attire, costume or clothing so as to expose to view any portion of the breasts below the top of the areola, or any portion of the pubic region, buttocks and or genitals.
Not permitted to demand or collect any payment or gratuity from any patron for entertainment.
Not permitted to perform, except on a stage of at least 24 inches above the floor level of the audience and to maintain at least a 10 foot separation from any patron at all times while performing.
Not permitted to be upon the stage at any time.
Not permitted to touch, caress or fondle the breasts, pubic region, buttocks or genitals of any employee, server or entertainer or engage in solicitation for prostitution.
(Ord. 3565, §1)