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9. Ordinance Regulating Sexually Oriented Businesses CITYOF CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 1 (612) 937 -1900 • FAX (612) 937 -5739 Ammon bJ► t1M Administrate? ' MEMORANDUM 1Modrfied,_ TO: Planning Commission Rejected , _ Date 8 1 4 , S3 ' FROM: Paul Krauss, AICP; Director of Planning Dee Submitted to Commies Dee Submitted to CO i1t� 1 DATE: July 12, 1993 - A 3 - c) 3 SUBJ: Ordinance Regulating Sexually Oriented Businesses 1 Last year the Planning Commission reviewed proposals for regulating sexually oriented businesses. The ordinance had been requested by the Mayor and City Council who were made 1 aware of the problem by then- current news accounts of communities who were caught short without regulations. When confronted by problem uses, they had few options and often had to resort to protracted and costly legal battles. 1 Our City Attorney advised us that nobody could construct a total prohibition to such uses due Y Y Y P to First Amendment protection. Therefore, a community must allow some reasonable options for these uses. There are thought to be two approaches. The first is the "combat zone" wherein an area is specifically designated to accept these uses. This must be a legitimate commercial area to qualify. Nobody preferred this option since there is no willingness to write off a portion of our town. ' The second approach is to use an ordinance to define such uses and then require setbacks from. sensitive uses such as churches, schools and day care centers. You can also require a physical separation between sexually oriented uses. A $500 licensing fee is proposed to be charged annually and this is managed in a manner that is similar to liquor licenses. The City can inspect the premises at any time. A minimum 500' setback from sensitive land uses is proposed. At that point we all agreed that this had become less of a zoning and more of a licensing matter. It was then referred to the Public Safety Commission for action. They approved of the approach and modified the ordinance slightly. However, when we finally got it back to the City Council 1 we found we had to have a formal Public Hearing on the ordinance at the Planning Commission. While this is not strictly speaking a zoning ordinance, it does establish setbacks which is a land use standard. 1 1 1 1 I Planning Commission July 12, 1993 Page 2 1 PLANNING COMMISSION UPDATE I The Planning Commission reviewed this item at their August 4, 1993, meeting. As with their earlier review of the item, there was general concurrence with the direction of the ordinance. The Commissioners did however believe that protections (i.e. physical separation standards) I should be extended to publicly owned or operated facilities such as city hall, library, bus stop, etc., and to "regular meeting places of a religious organizations." Their recommendation reflects this belief. I When this was last reviewed by the City Council, Councilman Senn asked that staff look into setting a fee higher then the $500 annual charge that had been proposed. My initial reaction is I that the level of cost relative to the City's administration of these permits and associated law enforcement efforts would be similar to those established for a liquor license. If this assumption is valid, then a comparable fee schedule may be reasonable. I Due in part a art to my need to be out of the country and an extreme shortage of time by all concerned staff and the City Attorney, it was not possible to have these revisions investigated I and drafted in time to get into the packet. However, I believe that both are minor and that the City Attorney will be in a position to respond to both at the Council meeting or at the very least, I by the time it comes back to you for second reading. Based upon the foregoing, staff is recommending that an ordinance amending Chapter 10 defining I and licensing sexually explicit businesses, be approved on first reading conditioned upon the incorporation of appropriate changes to expand protections to uses discussed by the Planning Commission and establishing a satisfactory annual fee structure. 1 STAFF RECOMMENDATION 1 Staff recommends that the Planning Commission recommend the City Council approve the proposed ordinance regulating sexually oriented businesses. 1 ATTACHMENTS 1 1. Memo from Paul Krauss dated April 7, 1992. 2. Proposed ordinance. 3. Example of required factual record from Lakeville. 1 1 1 1 Planning Commission Meeting August 4, 1993 - Page 55 Mancino: Qualified forester, etc. And that also they, not only would the do the formula. That person do the formula but decide if the significant trees are worthy of preservation. Conrad: My only question Kate is, where did this formula come from? , Aanenson: I attached it on the back. Conrad: It was in the attached? And that's, somebody's logically gone through that. Aanenson: Minnesota Extension Service. ' Conrad: Makes sense to you? You like it? Aanenson: Yeah. That's what you'll be seeing with the new landscape 1 ordinance, the tree preservation aspect. That same formula. That's what our forester is using. Conrad: See I've really not thought about how this all works. Aanenson: It's how do you give value if there's something out there and II you think it's worthy of saving but how do you know. You have someone inspect it to make sure it is worthy of saving and then how do you give it a value, so that's what that formula represents... ' Conrad: Is there a motion to table this? Scott moved, Mancino seconded that the Planning Commission table Zoning 1 Ordinance Amendment to clarify the landscaping ordinance for 2 weeks. All voted in favor and the motion carried. 1 PUBLIC HEARING: CITY CODE AMENDMENT TO CHAPTER 10. REGARDING SEXUALLY ORIENTED BUSINESSES., Kate Aanenson presented the staff report on this item. Vice Chair Conrad called the public hearing to order. For the record, it was noted there wa no one in attendance in the audience for this item. Harberts moved, Mancino seconded to close the public hearing. All voted in favor and the motion carried. The public hearing was closed. 1 Harberts: I have no other comments. Ledvina: No. ' Scott: I wanted to ask something. On Section 10 -162 for location. I'd like to add number 5 where it says. 1 Ledvina: What page are you on? Scott: Page 12. Where it says within 500 feet of. I'd like to add as , number 5, a city owned or operated facility. And also, city owned or 1 Planning Commission Meeting 11 August 4, 1993 - Page 56 operated facility or property. Maybe that's too, city owned or operated facility. Number 6. City owned property. Harberts: Rather than city owned, how about publically owned because I'm thinking transit facilities. It's not city owned but it's publically owned. Scott: My intent is to have so many of these 500 foot radii things around the city that it's okay, you can be in the middle of Market Boulevard. Okay, this is where you can do this. I'm sorry, it's a right use so that's my intent. ' Aanenson: So city owned is like the bus shelters? ' Scott: Yeah, or public facility. Roger can do. Harberts: Public facility. So that would also have to include like a school district building and things like that. 1 Scott: Well yeah. So you know what I'm getting to. Public. Yeah, public owned facilities. Or property. So if we own a lot. Harberts: Or a tree. Ledvina: But we talked about this a year and a half ago Ladd. If we do that, we have to make sure that that doesn't totally eliminate. Conrad: It has to be possible someplace. Ledvina: 500 feet from a road? I mean you're going to have a long driveway. ' Conrad: It would not be legal is that was. ' Scott: Well that's what I mean, Roger can. Aanenson: The facility thing may work. ' Scott: Yeah facility. That makes sense. The facility or building. Ledvina: Public building or something. I don't know. Scott: Public parks adjacent to it. I'd just like to see something, because City Hall. Public... Just have him take a look at that. If he can do something that's enforceable. Ledvina: City Hall or whatever. Or library or. Scott: Yeah, facility. Aanenson: We'll get a definition of facility. Scott: Facility I think would work but. Planning Commission Meeting August 4, 1993 - Page 57 Ledvina: Just so we don't effectively kill the ordinance. Conrad: See the trouble is, they could take you to court and you could 1 declare the whole ordinance invalid if you can't find a spot. If somebody came in and because of that they couldn't fine one location that was possible. Scott: Well that's why, I mean. Conrad: But if they can't find a location that's possible, then we're discrim. Scott: Well Roger won't do it. Roger won't put that in then but I think II we have a legitimate reason to use a city owned facility as another one of these. Ledvina: I agree with that. Aanenson: The public works building, that's separate. , Scott: Yeah, it's a publically owned facility. Except I'd like to see it expanded just a little. Aanenson: That's a good comment. Conrad: Nancy anything? 1 Mancino: My only other one, that was church. Why he didn't pull out church or religious organizations. I think we have a lot of public ' sentiment about that. Scott: And also too, there are churches who rent space. So it's not just" a church but a. Aanenson: Well that's the same with a daycare. Sometimes a daycare is in the middle of a shopping center, which may have an arcade or something next" to it so. Scott: That's a good point but then not only just limit it to a church, physical building, but. Aanenson: It doesn't have to be in a residential zone, right. Conrad: Okay, anything else Nancy? Mancino: No. ' 1 Conrad: Jeff. Farmakes: No comment. 1 Conrad: I have nothing. Is there a motion? Who wants to take credit for this? 1 Planning Commission Meeting 11 August 4, 1993 - Page 58 Scott: I move that the Planning Commission recommend that the City Council approve the proposed ordinance as amended to include in Section 10 -162, to include as item 5. City owned or operated. Or excuse me. Publically owned or operated facilities and /or property. Number 6. Church property, whether physical. Mancino: A meeting place of a religious organization. Scott: There you go. A regular meeting place of a religious organization subject to city attorney's input. ' Conrad: Is there a second? Ledvina: Second. ' Conrad: Discussion. Scott moved, Ledvina seconded that the Planning Commission recommend the City Council approve the proposed City Code amendment to Chapter 10 regarding sexually oriented businesses, amended as follows to include in Section 10 -162: 5. Publically owned or operated facilities and /or property. 6. A regular meeting place of a religious organization subject to City Attorney's input. All voted in favor and the motion carried. • NEW BUSINESS: ' Farmakes: I have some new business. I'd like, Kate if you would review the meeting Minutes in regards to Target, when the architect was in here. ' I forget what her name was but. Aanenson: The architect? Yeah. Farmakes: They had the architect making presentation to us with the charts and so on. We discussed lighting and as I recall, we discussed colors of lighting fixtures. As I recall. I don't know if we did that before the meeting or if records were taken or not. As I recall it was a natural colored lighting and she was referring to the rust color that we have on some of our lighting out here. They're fire engine red. They're even a brighter red than what they've got on their building. I don't know if that's a primer but I would suspect it's an attempt to create an attractive parking lot. Scott: That's the finished color. I was out there two days ago on site and that's. 1 Farmakes: It's a brighter red than what they've got on the building and that falls in line to what we're talking about on Highway 5. Creating, i 1 CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A. Attorneys at Law 1 Thomas ) Campbell ( 452-5000 Roger N Knutson Fax (612) 452-5550 I Thomas 1l Scott Gary 0 Fuchs Junes R Walston Elliott B. Knetsch I Nlichael A Bn,hack July 6, 1993 Rena,: h Steiner 1 Mr. Paul Krauss I Mr. Scott Harr Chanhassen City Hall 690 Coulter Drive, Box 147 Chanhassen, Minnesota 55317 1 RE: Sexually Oriented Businesses Dear Paul and Scott: 1 Enclosed please find ordinance amending Chapter 10 of the City 1 Code concerning sexually oriented businesses which has been revised to reflect some recent court decisions. Also enclosed for your convenience is a "red- lined" copy showing where the changes were made. 1 Very truly yours, • —It: ATSON, SCOTT 1 . A. :Y: 1 RNK:srn Roger N. Knutson Enclosure I 1 1 1 1 1 Suite 317 • Eagandale Office Center • 1380 Corporate Center Curve • Ewan. MN 55121 1 CITY OF CHANHASSEN CARVER AND HENNEPIN COUNTIES, MINNESOTA ORDINANCE NO. AN ORDINANCE AMENDING CHAPTER 10; DEFINING AND LICENSING SEXUALLY ORIENTED BUSINESSES; PROVIDING FOR DISTANCING REQUIREMENTS; RESTRICTIONS OF SUCH BUSINESSES FROM SCHOOLS AND OTHER USES; AND PENALTIES FOR VIOLATIONS THE CITY COUNCIL OF THE CITY OF CHANHASSEN ORDAINS: Section 1. Chapter 10 of the Chanhassen City Code is hereby amended by adding Article V to read: ARTICLE V. SEXUALLY ORIENTED BUSINESSES ' Sec. 10 -150. Purpose and intent Sec. 10 -151. Definitions Sec. 10 -152. Classification Sec. 10 -153. License required Sec. 10 -154. Issuance of license Sec. 10 -155. Fees Sec. 10 -156. Inspection Sec. 10 -157 Expiration of license Sec. 10 -158. Suspension Sec. 10 -159. Revocation. Sec. 10 -160. Appeal Sec. 10 -161. Transfer of license I Sec. 10 -162. Sec. 10 -163. Location of sexually oriented businesses Exemption from location restrictions Sec. 10 -164. Additional regulations for escort agencies Sec. 10 -165. Additional regulations for nude model studios Sec. 10 -166. Additional regulations for adult theaters and adult motion picture theaters Sec. 10 -167. Additional regulations for adult motels Sec. 10 -168. Regulations pertaining to exhibition of sexually explicit films or videos Sec. 10 -169. Enforcement 1 Sec. 10 -170. Injunction Sec. 10 -150. PURPOSE AND INTENT. (a) It is the purpose of this Chapter to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the City, to guard against the inception and transmission of disease, and to establish reasonable and uniform regulations to prevent the concentration of sexually 6834 r07/06/93 1 1 oriented businesses within the City. The provisions of this Chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this Chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and 11 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 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 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 1 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, ADULT VIDEO STORE, or ADULT 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 (2) instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities." 6834 , r07/06/93 2 1 11 11 ADULT CABARET means a nightclub, bar, restaurant, or similar c ommercial 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 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 establishment 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." ADULT THEATER means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities." CITY MANAGER means the city manager of the City of Chanhassen. 1 6834 r07/06/93 3 1 ESCORT means a person who, for consideration, agrees or offers 1 to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person. , ESCORT AGENCY means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as 11 one of its primary business purposes, for a fee, tip, or other consideration. ESTABLISHMENT means and includes any of the following: ' (1) the opening or commencement of any sexually oriented business as a new business; 1 (2) the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; (3) the addition of any sexually oriented business to any other existing sexually oriented business; or , (4) the relocation of any sexually oriented business. LICENSEE means a 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 the application for a license. NUDE MODEL STUDIO means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. NUDITY or a STATE OF NUDITY means: , (1) the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast; or , (2) a state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast. PERSON means an individual, proprietorship, partnership, corporation, association, or other legal entity. , RESIDENTIAL DISTRICT means that area of the City zoned as RSF, R -4, R -8, R -12, or R -16 by the City Code. 1 SEMI -NUDE means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices. 6834 r07/06/93 4 1 1 11 SEXUAL ENCOUNTER CENTER means a business or commercial e nterprise that, as one of its primary business purposes, offers for any form of consideration: 1 (1) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or (2) activities between male and female persons and /or persons of the same sex when one or more of the persons is in a state of nudity or semi -nude. SEXUALLY ORIENTED BUSINESS means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center. SPECIFIED ANATOMICAL AREAS means human genitals in a state of sexual arousal. SPECIFIED SEXUAL ACTIVITIES means and includes any of the ' following: (1) the fondling or other erotic touching of human genitals, ' pubic region, buttocks, anus, or female breasts; (2) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; (3) masturbation, actual or simulated; or (4) excretory functions as part of or in connection with any of the activities set forth in (1) through (3) above. SUBSTANTIAL ENLARGEMENT of a sexually oriented business means ' the increase in floor area occupied by the business by more than 25 percent (25 %), as the floor area existed on March 31, 1992. ' 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. ' 6834 r07/06/93 5 1 Sec. 10 -152. CLASSIFICATION. 1 The following are classified as sexually oriented businesses: (a) adult arcades; 1 (b) adult bookstores, adult video stores, adult 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 drawn 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 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 must be inspected and found to be in compliance with the law by the fire department and building official. ' (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. 6834 r07/06/93 6 11 11 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) An applicant is under 18 years of age. (2) An applicant is delinquent in his or her payment to ' the City of taxes, fees, fines, or penalties assessed against him or her or imposed upon him or her in relation to a sexually oriented business. (3) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for 1 information on the application form. (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 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 revoked within the preceding 12 months. 11 (6) The premises to be used for the sexually oriented business have not been approved by the fire ' department and the building official as being in compliance with applicable laws and ordinances. ' (7) The license fee required by this Chapter has not been paid. (8) An applicant has been employed in a sexually 11 oriented business in a managerial capacity within the preceding 12 months and has demonstrated that he or she is unable to operate or manage a sexually ' oriented business premises in a peaceful and law- abiding manner, thus necessitating action by law enforcement officers. 1 (9) An applicant or the proposed establishment is in violation of or is not in compliance with this Ordinance. (10) An applicant or an applicant's spouse has been convicted of a crime: r 6834 r07/06/93 7 II a. involving any of the following offenses: 1 1. prostitution as described in Minn. Stat. § 609.321; II 2. solicitation, inducement of promotion of prostitution as described in Minn. Stat. § 609.322; II 3. receiving profit derived from II prostitution as described in Minn. Stat. § 609.323; 4. other prohibited acts relating to prostitution as described in Minn. Stat. § 609.324; 5. obscenity as described in Minn. Stat. § 1 617.241; 6. sale, dissemination, distribution, II display or exhibition of harmful material to minors as described in Minn. Stat. §§ 617.293 and 617.294; II 7. sexual performance by a child as described in Minn. Stat. § 617.246; 8. dissemination or possession of child II pornography as described in Minn. Stat. § 617.247; 1 9. indecent exposure as described in Minn. Stat. § 617.23; ' 10. criminal sexual conduct as described in Minn. Stat. §§ 609.342, 609.343, 609.344, and 609.345; II 11. incest, as described in Minn. Stat. § 609.365; or 1 12. criminal attempt, conspiracy, or solicitation to commit any of the 1 foregoing offenses; b. for which: (i) less than two years have elapsed since II the date of conviction or the date of release from confinement imposed for the II conviction, whichever is the later date, if the conviction is of a misdemeanor offense; II 6834 r07/06/93 8 II 1 1 (ii) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or (iii) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24 -month period. (b) The fact that a conviction is being appealed shall have 1 no effect on the disqualification of the applicant or applicant's spouse. (c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in Section l0-154(a) (10) (a) may qualify for a sexually oriented business license only when the time period required by Section 10- 154(a)(10)(b) has elapsed. ' (d) The license, if granted, shall state the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. 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 any 1 time. Sec. 10 - 155. LICENSE FEES; LICENSE INVESTIGATION FEES. ' The annual fee for a sexually oriented business license is $500. The investigation fee for the purpose of issuing a license is $500. In the event that the license is denied upon application, 11 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. (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 to permit a lawful inspection of the premises by a representative of 1 6834 r07/06/93 9 1 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. Sec. 10 - 157. EXPIRATION OF LICENSE. 1 (a) Each renewal license shall be issued for a maximum 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. 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 ' exceed thirty (30) days following written notice and an opportunity to be heard if the Manager determines that a licensee or an employee of a license has: 1 (1) violated or is not in compliance with 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 1 on the sexually oriented business premises; (5) demonstrated inability to operate or manage a j sexually oriented business in a peaceful and law- abiding manner thus necessitating action by law enforcement officers. 1 Sec. 10 - 159. REVOCATION. (a) The City Manager may revoke a license preceded by written , notice and an opportunity to be heard if a cause for suspension set 1 6834 r07/06/93 10 1 11 11 forth in Section 10 -158 occurs and the license has previously been suspended within the preceding 12 months. (b) The City Manager may revoke a license preceded by written notice and an opportunity to be heard if the City Manager determines that: (1) a licensee gave false or misleading information in the material submitted to the City during the application process; (2) a licensee or an employee has knowingly allowed possession, use, or sale of controlled substances 11 on the premises; (3) a licensee or an employee has knowingly allowed prostitution on the premises; 11 (4) a licensee or an employee knowingly operated the 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 persons were employees of the sexually oriented business at the time the offenses were committed; (7) a licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, ' masturbation, or sexual contact to occur in or on the licensed premises. The term "sexual contact" shall have the meaning as it is defined in Minn. Stat. § 609.341, Subd. 11(b); or (8) a licensee is delinquent in payment to the City for ad valorem taxes, local lodging tax, or other taxes or fees related to the sexually oriented business. (c) The fact that a conviction is being appealed shall have no effect on the revocation of the license. (d) Subsection 10-159(b)(7) does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view. 11 6834 r07/06/93 11 1 (e) When the City Manager revokes a license, the revocation i shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the City Manager finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was granted under Subsection 10-159(b)(7), an applicant may not be granted another license until the appropriate number of years required under Section 10- 154(a)(10)(a) have elapsed. ' Sec. 10 -160. APPEAL. (a) If the City Manager denies the issuance of a license, or suspends, or revokes a license, the Manager shall send to the applicant, or licensee, by certified mail, return receipt requested, written notice of the action, and the right to an appeal. The aggrieved party may appeal the decision of the City Manager within 10 days of receiving notice of the City's action. The filing of an appeal stays the action of the City Manager in suspending or revoking a license until the City Council makes a final decision. (b) PROCEDURE: The City Council may appoint a committee of the Council or an independent hearing officer to hear the matter, report findings of fact and a recommendation for disposition to the Council. Hearings on the appeal shall be open to the public and the licensee or applicant shall have the right to appear and be represented by legal counsel and to offer evidence in its behalf. At the conclusion of the hearing, the City Council shall make . a final decision. (c) ADDITIONAL REQUIREMENTS: The City Council may condition denial, suspension, revocation, or non - renewal of a license upon appropriate terms and conditions. Sec. 10 -161. TRANSFER OF LICENSE. ' A licensee shall not transfer his or her license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application. Sec. 10 -162. LOCATION OF SEXUALLY ORIENTED BUSINESSES. ' (a) A person commits an offense if he or she operates or causes to be operated a sexually oriented business within 500 feet of: (1) a public or private elementary or secondary school; (2) a licensed day care center 6834 1 r07/06/93 12 11 11 (3) a residential district; or (4) a public park adjacent to a residential district. (b) A person commits an offense if he or she causes, caused or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 500 feet of another sexually oriented business. (c) A person commits an offense if he or she causes, caused or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure or portion thereof, or the increase of floor area of any sexually 1 oriented business in any building, structure, or portion thereof containing another sexually oriented business. (d) For the purposes of Subsection (a), measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church or public or private elementary or secondary school or licensed day care center, or to the nearest boundary of an affected public park, residential district, or residential lot. (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 1 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 1 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. 6834 r07/06/93 13 r Sec. 10 -163. EXEMPTION FROM LOCATION RESTRICTIONS. 1 (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 effect on nearby properties or be contrary to the public safety or welfare; (2) that the granting of the exemption will not violate 11 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 6834 ' r07/06/93 14 11 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. 1 (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 or she acts as an escort or agrees to act as an escort for any person under the age of 18 years. Sec. 10 -165. ADDITIONAL REGULATIONS FOR NUDE MODEL STUDIOS. (a) A nude model studio shall not employ any person under the age of 18 years. (b) A person commits an offense if he or she appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right of way. 11 Sec. 10 -166. ADDITIONAL REGULATIONS FOR ADULT THEATERS AND ADULT MOTION PICTURE THEATERS. ' (a) A person commits an offense if he or she knowingly allows a person under the age of 18 years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater. (b) It is a defense to prosecution under Subsection (a) of this section if the person under 18 years was in a restroom not open to public view or persons of the opposite sex. Sec. 10 -167. ADDITIONAL REGULATIONS FOR ADULT MOTELS. (a) Evidence that a sleeping room in a hotel, motel, or similar commercial establishment has been rented and vacated two or more times in a period of time that is less than 10 hours creates a rebuttable presumption that the establishment is an adult motel as that term is defined in this Chapter. (b) A person commits an offense if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented business ' 6834 r07/06/93 15 1 license, he rents or subrents a sleeping room to a person and, It within 10 hours from the time the room is rented, he or she rents or subrents the same sleeping room again. (c) For purposes of Subsection (B) of this section, the terms "rent" or "subrent" mean the act of permitting a room to be occupied for any form of consideration. ' Sec. 10 -168. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS. (a) A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements: I/ (1) Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof ' specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit will be conspicuously posted, of granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The City Manager may waive the foregoing 1 diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. (2) The application shall be sworn to be true and correct by the applicant. (3) No alteration in the configuration or location of a manager's station may be made without the prior ' approval of the City Manager or his or her designee. (4) It is the duty of the owners and operator of the , premises to ensure that at least one employee is on duty and situated in each manager's station at all 6834 r07/06/93 16 11 11 times that any patron is present inside the premises. (5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access 1 for any purpose excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's 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 1 level. (8) It shall be the duty of the owners and operator and it shall also be the duty of any agents and 1 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. 1 6834 r07/06/93 17 1 1 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 this Chapter 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 private college or university which maintains t and operates educational programs in which credits are transferrable to a college, junior college, or university supported entirely or partly by taxation; or (3) in a structure: 1 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. 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 1 ninety (90) days after its passage and publication according to law. PASSED AND ADOPTED by the Chanhassen City Council this day of , 1993. ATTEST: ' Don Ashworth, Clerk /Manager Donald J. Chmiel, Mayor 1 (Published in the Chanhassen Villager on , 1993.) 6834 r07/06/93 18 1 ow No um ma I am i mu I in No um ON I EN my p to o~, o . to �e�� /g � V �� trptillialg,2411.11:74111titrillelatFE. •- M `C i3. R Q C) STI .�r F n s, ER0 0 iftiffell ta . °al • g. N grir g b a pigiN i �ft ll Ordinance: ,Standards set for local _ businesses i rom previous page from appearing in a "state of Nancy Ash Hutchison wrote the drafted on the basis of protec- munity," according to Gilligan. nudity" (except in tearooms) in city and shared relevant court ting the city from adverse ef- The adverse secondary effects oriented materials under the any licensed establishment sell- cases on the topic. fects of sexually oriented would create a "cycle of decay" ordinance. ing food, beer, wine or liquor, or A committee of citizens and businesses, rather than attemp- with higher crime rates, proper- • No customers would be per- in any place where admission or officials was created for the pur- ting to restrict sexually- explicit ty values, area retail and milted on the premises between a fee is charged for viewing. pose of developing the proposed free speech. general quality of life, according 10 p.m. and 8 a.m. "I feel strongly that Edina ordinance. A human relations "A gas station selling a small to the ordinance. • Applicants wishing to open a should adopt this restriction on committee and the planning amount of adult magazines or a The new ordinance is not ex- sexually- oriented business dancing requiring coverage of commission had input before the • video store that rents some adult pected to affect any existing would be required to pay the city these areas. It is entirely possi- draft went before the council. movies has not been shown by businesses, said Gordon a license and investigation fee. ble that such an establishment City Attorney Jerry Gilligan the studies to cause adversg Hughes, assistant city manager. • Persons would be restricted could locate in Edina," resident advised that the ordinance be secondary effects to the com- CITYOF CHANHASSEN 690 COULTER DRIVE • P.O. BOX 147 • CHANHASSEN, MINNESOTA 55317 (612) 937 -1900 • FAX (612) 937 -5739 MEMORANDUM TO: Planning Commission FROM: Paul Krauss, Planning Director 1 DATE: April 7, 1992 SUBJ: Continued Discussion on Proposed Ordinance Amendment Dealing with Sexually- Oriented Businesses , Last month, staff presented a memo from the City Attorney outlining possibilities for the regulation of adult entertainment establishments. The Planning Commission has been asked on several occasions by the Mayor and City Council to deal with this issue. Recently, the newspaper has had extensive reports on the impact adult entertainment establishments have had on a daycare center in the town of Ramsey. It was my understanding that the Planning Commission is being asked to address this issue to pre- empt such situations to the greatest extent possible. 1 In the City Attorney's memo, he indicates that there are basically two approaches to regulating adult entertainment. The first is the "war zone" approach wherein the city ' establishes a district or neighborhood where all adult entertainment establishments are required to locate. The second approach is to establish a definition for adult businesses, require permits, and require that these be located a certain distance from sensitive land 1 uses such as churches and daycare centers. Due largely to court interpretations of first amendment rights, it is not legally possible to completely preclude the location of these businesses in our community. We also note that since the last Planning Commission meeting where this was discussed, the City of Bloomington adopted an ordinance regulating adult entertainment. The City Attorney has drafted an amendment to Chapter 10 of the Chanhassen City Code dealing with licenses, permits, and miscellaneous business regulations to deal with sexually- oriented businesses. In the attorney's opinion, this adequately defines sexually - oriented businesses, and under Section 10 -162 precludes their location within 500 feet of a church, public or private elementary or secondary schools, licensed daycare centers, or a public park adjacent to a residential district. Roger told me that this is the type of i4: PRINTED ON RECYCLED PAPER 1 1 1 Planning Commission April 7, 1992 Page 2 1 ordinance that has been consistently upheld and is being adopted by other communities in the Twin Cities area. 1 Staff is comfortable with the approach being proposed by the City Attorney. We believe this ordinance responds to the requests of the City Council while being enforceable and I reasonably easy to administer. We would ask that the Planning Commission review the attached ordinance and provide some comments and direction. After your review, the Public Safety Commission will also be asked to review this ordinance for comment. I Since this section of the code is not a part of the Zoning Ordinance, any public hearing that may be held would need to be held at the City Council level. 1 RECOMMENDATION Staff recommends that the Planning Commission adopt the position recommending 1 review and approval of this ordinance by the Chanhassen City Council. 1 pc: Scott Harr, Public Safety Director 1 1 1 1 1 1 1 1 1 1