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7. Sexually Oriented Business Ordinance ,,I CITYOF 1 1 % I 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 I -y (612) 937 -1900 • FAX (612) 937 -5739 1 MEMORANDUM Action by City Administrator Endorsed ✓ -D 1 TO: Mayor Modified City Council Netted Don Ashworth, City Manager Date to - a Z -1 3 Date Submitted to Commission • 1 FROM: Scott Harr, Public Safety Director Date Submitted to Council 6 - 7 3 1 DATE: May 3, 1993 SUBJ: Sexually Oriented Business Ordinance 1 1 At the request of City Planning Director Paul Krauss, the Public Safety Commission has at two meetings reviewed the sexually oriented business ordinance that he and City Attorney Roger Knutson drafted. At the first Public Safety Commission meeting (May 1992), the 1 Commission reviewed the proposed ordinance, requesting that the City Attorney and the City Planning Director attend the July 1992 meeting to further explain it. I At the July 9, 1992, Public Safety Commission meeting, the Commission agreed that licensing could be an effective means of regulating these types of businesses. The Public I Safety Commission did vote to submit the proposed ordinance as drafted by Roger Knutson and Paul Krauss, which deals with sexually oriented businesses to the City Council for consideration. The reason that it is being submitted through Public Safety is because this I ordinance is primarily a permit procedure, and, as such, would be handled by the Public Safety Department. I RECOMMENDATION Staff recommends that this proposed ordinance be submitted to the City Council for 1 consideration. 1 1 is t4: PRINTED ON RECYCLED PAPER 1 s 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 1 Planning Director's Addendum The Planning Commission reviewed a draft of this ordinance last winter at the request of the Mayor and City Council. In working with the City Attorney's Office, it became clear that there were two possible approaches towards regulating sexually oriented uses. The first is the zoning based or "combat area" approach. What this essentially means is that these uses are restricted to a limited, well defined neighborhood. Due to first amendment protections and various court rulings, this neighborhood could not, for example, be on a farm in the middle of southern Chanhassen, but must represent a viable commercial opportunity. The Planning Commission had a difficult time thinking of how to consign a portion of our community to this fate. It also did not seem to be terribly affective. The second method which has been used increasingly by communities around the country and the Twin Cities, is to define sexually oriented uses and to require them to maintain acceptable setbacks from sensitive land uses. They would be licensed by the City, in much the same manner that liquor licenses are issued. In so doing, the City would insure that the criminal element is not involved in an ownership situation. In the case of this ordinance, the sensitive uses are identified as churches, public or private schools, licensed day care centers, residential districts or public parks adjacent to a residential district. Within the confines of legal constraints courts have placed upon regulating such use as the Planning Commission believes this to be the most appropriate approach. However, since this is not a zoning based approach, this matter was referred to the Public Safety Commission for review and recommendation. Having discussed this matter with the City Attorney at length, we believe that this is best type of control the City can legally enforce, and we would urge the Council to enact it. We are unsure as to what the risks are of having such a use located in our community. However, it appears certain that as our community grows, so does our exposure. While there is no legally satisfactory way to completely ban such uses, the proposed ordinance does provide us with reasonable and legally supportable controls. We are recommending that the ordinance be approved. 1 CAMPBELL, KNUTSON, SCOTT & FUCHS, PA. Att rne� at Lim Th,ana ( :am1 hell (6121 - {i' Rorer N Knutson FAN (6121 45' -'650 Thomas N1 Scntt Gan G Fuchs James R. Walston Elliott 13. Knersch _ Michael A. Btotack July 15, 1992 Renae I) Steiner Mr. Scott Harr Mr. Paul Krauss Chanhassen City Hall 690 Coulter Drive, Box 147 Chanhassen, Minnesota 55317 RE: Sexually Oriented Business Ordinance Gentlemen: Enclosed please find the sexually oriented business ordinance with the changes requested at the Public Safety Commission meeting of July 7, 1992. Please note that instead of including all massage therapy centers and then having provisions that specifically exclude legitimate massage therapy centers from the application of the ordinance, adult massage parlors are defined in such a way as to include only those massage parlors that are distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas. Please also note that in the current draft the only residential districts from which sexually oriented businesses must not be operated within 500 feet are the residential districts zoned as RSF, R -4, R -8, R -12, or R -16 by the City Code. If you would like to add more residential districts to the list to be protected, please contact me. If you have any questions or concerns, please do not hesitate to contact me. Very truly yours, / CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. BY: - Alle - Renae D. Steiner RDS:srn Enclosure 1 State 317 • Ea<uanJale- Office Center • 1380 Corporate Center Cur e • E,r„ an, MN 55121 1 1 EDIN EDINA REALTY r, SECTION , March 24, '- 1993 Vol. 22, No _27 -v_ j City up' look Cit will draft new 'nment works code to regulate � :�� sex - oriented businesses ��,�' \ - \� � ` ; * __* *; , By Mary Durben In a memo recommending the action, Gilligan said the com- N , A -* . = The city of Edina could soon mittee's first step would be to I • 4 �, '- - _ have an ordinance regulating study the potential impact of - - sexually oriented businesses. sexually oriented businesses on - ' � * * - The City Council last week the surrounding community : ` S' * voted to establish a study com- The U.S. Supreme Court has rul- I - :. -; * * * * .. » mittee to draft such an or ed that cities can use the ex- > - - -- m » 3 dinance. The committee will be penence of other cities in com- ? ` • , * * made up of representatives of piling their own study and '' -' the Planning Commission, the recommendations. ;Z k F • Human Relations Commission The city must demonstrate a ,� , :: * * and the Health Advisory Board Link between the businesses and as well as representatives of the interests the city seeks to pro - '* � community at large. Mayor test, said Gilligan. 1, x = Fred Richards said the latter In order to pass scrutiny by .,� \ I. group would include represen- the court for freedom of speech `�, 3 P. tatives of churches violations, Gilligan said the in \ *Ax - � �� -; x-r , Richards asked council tent of a zoning ordinance must 4 x i members to submit recommen- show a substantial government A \ �� x ` -- dations of people they would like interest in zoning adult uses, tt - ' ' .,, to see on the committee. Com- must not be to suppress or k , _ ` �_' _ mittee members will be ap- harass adult businesses, must 1 '< _ pointed at the council's April 5 be narrowly drawn so as not to meeting. They will be asked to exceed the degree of regulation r return with a draft ordinance by justified by the government in- i'= -. the second meeting in May terest; must precisely define the r = � � Richards said adult uses it regulates; and E # No sexually oriented must provide adult e a :� businesses are in the communi- establishments with a ` `' t ty at present, nor is there a pro- reasonable chance of locating in z � - 1 4, spect of any locating m Edina in the cis t �= , P� Y g `y. _ �� x 1 \ the near future. But that is The Supreme Court has ��; 4 :k� precisely why Edina should act upheld ordinances regulating , 4,, z ' now when the ordinance could bookstores and theaters when \ IF ��k -'' � � �o not be seen as aimed against the intent was to prevent crime, . �� :�. �� a�. , anyone, said City Attorney protect retail trade, maintain ' $4 :.0 . \ 3' Y Y Y P ` � , ,% �` ` -- 3 Jerry Gilligan. property values and generally 1 . y :' ' , ° 44' _, '''a Gilligan said the idea of draf- protect and preserve the quality le` to right, front row, Andy Stehm, Lindsay Sander, ting such an ordinance has been of a city's neighborhoods, com- nie Margolis and Jami Koski went to Washington, D. C. "discussed from time to time" mercial districts and urban life ,, logram. (Photo by Linda Cullen) by the City Council and staff. Zoning restrictions of other The ordinance would be aim- cities have either required sex - ur, but we had "The first thing they ed at regulating businesses such ually oriented businesses to cussions on more expected us to do every as adult bookstores and theaters locate in certain areas or re- ; lan I thought morning was go get a and could take the form of zon- quired them to be dispersed i la week. It was ing restrictions and /or licensing >tiehm said. CLOSE. UP: To page 5A requirements. CODE: To page 16A • • /bell cr .e■ ter. » r s1 IL XTi1Y'l /1 X 7 la 1 of sexually oriented businesses within the City. The provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this Chapter to restrict or deny ti access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. (b) The City Council further finds that experience from other cities demonstrates that sexually oriented businesses I conducted in private by members of the same or the opposite sex, and employing personnel with no 'specialized training, are susceptible to operation in a manner contravening, subverting or endangering the health, safety and welfare of members of the community by being the sites of acts of prostitution, illicit I� sex, and occasions of violent crimes, thus requiring close inspection, licensing, and regulation. (c) It is the intent of the City Council that the locational regulations of Section 10 -162 of this Chapter are promulgated pursuant to Minnesota Statutes § 462.357 et. seq., Chapter 20 of the City Code (the zoning ordinance), and the City's Comprehensive Plan. Sec. 10 -151. DEFINITIONS. The following words, terms, and phrases, when used in this Chapter, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning: ADULT ARCADE means any place to which the public is permitted or invited wherein coin - operated or slug- operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image- producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas." ADULT BOOKSTORE or ADULT VIDEO STORE means a commercial establishment which as one of its principal business purposes offers for sale or rental for any form of consideration any one or more the following: (1) books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe "specified sexual activities" or "specified anatomical areas "; or 1 - 2 - 1 1 (2) instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities." ADULT CABARET means a nightclub, bar, restaurant, or similar commercial establishment which regularly features: (1) persons who appear in a state of nudity; or (2) live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities "; or (3) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." ADULT MASSAGE PARLOR means a massage parlor which excludes minors by reason of age, or which provides, for any form of consideration, the rubbing, stroking, kneading, tapping, or rolling of the body, if the service provided by the massage parlor is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas ". ADULT MOTEL means a hotel, motel or similar commercial establishment which: (1) offers accommodations.to the public for any form of I consideration; provides patrons with closed- circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas "; and has a sign visible from the public right of way which advertises the availability of this adult type of photographic reproductions; or (2) offers a sleeping room for rent for a period of time that is less than 10 hours; or (3) allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than 10 hours. ADULT MOTION PICTURE THEATER means a commercial establish- ! ment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." • - 3 - I TRANSFER OF OWNERSHIP OR CONTROL of a sexually oriented business means and includes any of the following: (1) the sale, lease, or sublease of the business; (2) the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or (3) the establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. Sec. 10 - 152. CLASSIFICATION. Sexually oriented businesses are classified as follows: (a) adult arcades; (b) adult bookstores or adult video stores; (c) adult cabarets: (d) adult motels; (e) adult massage parlors; (f) adult motion picture theaters; (g) adult theaters; (h) escort agencies; (i) nude model studios; and (j) sexual encounter centers. Sec. 10.153. LICENSE REQUIRED. (a) A sexually oriented business may not be operated without a valid license, issued by the City for the particular type of business. (b) An application for a license must be made on a form provided by the City Clerk. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be t' rawn to a designated scale or drawn with market dimensions of the interior of the premises to an accuracy of plus or minus six inches. Applicants who must comply with . - 6 - i .1 1 Section 10 -168 of this Chapter shall submit a diagram meeting the requirements of that Section. (c) The applicant must be qualified according to the provisions of this Chapter and the premises mhst be inspected and found to be in compliance with the law by the'fire department and building official. 1 (d) If a person who wishes to operate a sexually oriented business is an individual,the individual must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a 10 percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under Section 10 -154 and each applicant shall be considered a licensee if a license is granted. 1 Sec. 10 -154. ISSUANCE OF LICENSE. (a) The City Manager shall approve the issuance of a license by the City clerk to an applicant within 30 days after receipt of an application unless the Manager finds one or more of the following to be true: 1 (1) An applicant is under 18 years of age. 1 (2) An applicant is delinquent in his payment to the City of taxes, fees, fines, or penalties assessed against him or imposed upon him in relation to a sexually oriented business. 1 (3) An applicant has failed to provide information reasonably necessary for issuance of the license 1 or has falsely answered a question or request for information on the application form. • 1 (4) An applicant has been convicted of a violation of a provision of this Chapter within two years immediately preceding the application. The fact that a conviction is being appealed shall have no 1 effect. (5) An applicant is residing with a person who has been denied a license by the City to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been 1 revoked within the preceding 12 months. (6) The premises to be used for the sexually oriented 1 business have not been approved by the fire department and the building official as being in compliance with applicable laws and ordinances. 1 - 7 1 ,,,A 0- 1 t s \ Qy Sec. 10- 5. LICENSE FEES; LICENSE INVESTIGATION FEES. e annual fee for a sexually oriented business license is 5500: Mile investigation fee for the purpose of issuing a license is $500. In the event that the license is denied upon application, the license fee shall be refunded; however, no part of the license investigation fee shall be returned to the applicant. No part of the annual license fee shall be refunded if the license is suspended or revoked. Sec. 10 -156. INSPECTION. I (a) An applicant or licensee shall permit representatives of the police department, fire department, and building inspection division to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business. (b) A person who operates a sexually oriented business or their agent or employee commits an offense if the person refuses I to permit a lawful inspection of the premises by a representative of the police department at any time it is occupied or open for business. (c) The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation. I Sec. 10- 157. EXPIRATION OF LICENSE. (a) Each renewal license shall be issued for a maximum I period of one (1) year. All licenses expire on June 30 of each year. Each license may be renewed only by making application as provided in Section 10 -153. Application for renewal should be ' made at least 90 days before the expiration date, and when made less than 90 days before the expiration date, the expiration of the license will not be affected. If the Council determines good and sufficient cause is shown by the Applicant for failure to file a timely renewal application, the Council may, if other provisions of the Chapter are complied with, grant the application. (b) When the City Manager denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the City Manager finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date denial became final. Sec. 10 -158. SUSPENSION. The City Manager may suspend a license for a period not to I exceed thirty (30) days if the Manager determines that a licensee or an employee of a license has: - 10 - (1) violated or is not in compliance with Section 10 -156, 10 -161, 10 -162, 10 -164, 10 -165, 10 -166, 10 -167, 10 -168, or 10 -169 of this Chapter; (2) engaged in excessive use of alcoholic beverages while on the sexually oriented business premises; (3) refused to allow an inspection of the sexually oriented business premises as authorized by this Chapter; (4) knowingly permitted unlawful gambling by any person on the sexually oriented business premises; (5) demonstrated inability to operate or manage a sexually oriented business in a peaceful and law - abiding manner thus necessitating action by law enforcement officers. Sec. 10 - 159. REVOCATION. (a) The City Manager may revoke a license if a cause of suspension in Section 10 -158 occurs and the license has been suspended within the preceding 12 months. (b) The City Manager may revoke a license if the City Manager determines that: (1) a licensee gave false or misleading information in the material submitted to the chief of police during the application process; (2) a licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises; (3) a licensee or an employee has knowingly allowed prostitution on the premises; (4) a licensee or an employee knowingly operated erated the g sexually oriented business during a period of time when the licensee's license was suspended; (5) a licensee has been convicted of an offense listed in Section 10- 154(a)(10)(a) for which the time period required in Section 10- 154(a)(10)(b) has not elapsed; (6) on two or more occasions within a 12 -month period, a person or persons committed an offense occurring in or in the licensed premises of a crime listed in Section 10- 154(a)(10)(a), for which a conviction has been obtained, and the person or - 11 1 (e) For purposes of Subsection (b) of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located. (f) Any sexually oriented business lawfully operating on March'31, 1992, that is in violation of Subsections (a), (b), or (c) of this section shall be deemed a nonconforming use. The nonconforming use will be permitted to continue. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 500 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later - established business(es) is nonconforming. (g) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a church, public or private elementary or secondary school, licensed day care center, or public park within 500 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or has been revoked. Sec. 10 -163. EXEMPTION FROM LOCATION RESTRICTIONS. (a) If the City Manager denies the issuance of a license to an applicant because the location of the sexually oriented business establishment is in violation of Section 10 -162 of this Chapter, then the applicant may, not later than 10 calendar days after receiving notice of the denial, file with the City Clerk a written request for an exemption from the location restrictions of Section 10 -162. (b) If the written request is filed with the City Clerk within the 10 -day limit, the City Council shall consider the request. The City Clerk shall set a date for the hearing within 60 days from the date the written request is received. (c) The City Council shall hear and consider evidence offered by any interested person. The formal rules of evidence do not apply. (d) The City Council may, in its discretion, grant an exemption from the locational restrictions of Section 10 -162 if it makes the following findings: (1) that the location of the proposed sexually oriented business will not have a detrimental 1 - 14 - I effect on nearby properties or be contrary to the public safety or welfare; (2) that the granting of the exemption will not Violate the spirit and intent of this Chapter of the City Code; (3) that the location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight; (4) that the location of an additional sexually oriented business in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any efforts of urban renewal or restoration; and (5) that all other applicable provisions of this Chapter will be observed. (e) The City Council shall grant or deny the exemption by a majority vote. Failure to reach a majority vote shall result in denial of the exemption. Disputes of fact shall be decided on the basis of a preponderance of the evidence. The decision of the City Council is final. (f) If the City Council grants the exemption, the exemption is valid for one year from the date of the Council's action. Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of Section 10 -162 until the applicant applies for and receives another exemption. (g) If the City Council denies the exemption, the applicant may not re -apply for an exemption until at least 12 months have elapsed since the date of the Council's action. (h) The grant of an exemption does not exempt the applicant from any other provisions of this Chapter other than the locational restrictions of Section 10 -162. Sec. 10 -164. ADDITIONAL REGULATIONS FOR ESCORT AGENCIES. (a) An escort agency shall not employ any person under the age of 18 years. (b) A person commits an offense if he acts as an escort or agrees to act as an escort for any person under the age of 18 years. ,+ 4' • - 15 - 1 i :'a 1 stations. The view required in this subsection must be by direct line of sight from the manager's station. (6) It shall be the duty of the owners and operator, and it shall also be the duty of any agents and employees present in the premises to ensure that • the view area specified in Subsection (5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection (1) of this section. (7) The 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 (1.0) footcandle as measured at the floor level. (8) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above, is maintained at all times that any patron is present in the premises. (b) A person having a duty under Subsections (1) through (8) of Subsection (a) above commits an offense if the person knowingly fails to fulfill that duty. Sec. 10 -169. ENFORCEMENT. (a) Any person violating a provision of this Chapter, upon conviction, is punishable by a fine not to exceed $700.00 and ninety (90) days in jail. (b) It is a defense to prosecution under Section 10- 153(a), 10 -161, or 10- 165(d) that a person appearing in a state of nudity did so in a modeling class operated: (1) by a proprietary school licensed by the State of Minnesota; a college, junior college, or university supported entirely or partly by taxation; (2) by a p3'ivate college or university which maintains and operates educational programs in which credits are transferrable to a college, junior college, or - 18 - 1 11 university supported entirely or partly by taxation; or (3) in a structure: I a. which has no sign visible from the exterior of the structure and no other advertising that ' indicates a nude person is available for viewing; and ' b. where in order to participate in a class a student must enroll at least three days in advance of the class; and ' c. where no more than one nude model is on the premises at any one time. ' (c) It is a defense to prosecution under Section 10- 153(a) or 10 -162 that each item of descriptive, printed, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political, or scientific value. Sec. 10 -170. INJUNCTION. A person who operates or causes to be operated a sexually oriented business without a valid license or in violation of Section 10 -162 of this Chapter is subject to a suit for injunction as well as prosecution for criminal violations. Section 2. Effective Date. This Ordinance shall be ' effective immediately upon its passage and publication according to law. ' PASSED AND ADOPTED by the Chanhassen City Council this day of , 1992. 1 ATTEST: 1 Don Ashworth, Clerk /Manager Donald J. Chmiel, Mayor 1 (Published in the Chanhassen Villager on , 1992.) 1 1 - 19 - 1 1 1 1 CITY OF CHANHASSEN 1 CARVER AND HENNEPIN COUNTIES, MINNESOTA SUMMARY ORDINANCE NO. 1 The ordinance establishes a procedure by which sexually oriented businesses are defined, 1 when licenses are required, the cost of the investigation and licensing, enforcement and other issues pertaining to the operation of such businesses within the City of Chanhassen. I Passed and adopted by the Chanhassen City Council on this day of , 1993. Don Ashworth I City Clerk /Manager (Published in the Chanhassen Villager on , 1993) 1 1 1 1 1 1 1 1 1 1