HomeMy WebLinkAboutordinance.council.018-96
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ORDINANCE NO. LJ{
(Series of 1996)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
AMENDING TITLE 14 OF THE ASPEN MUNICIPAL CODE BY THE ADDITION OF A
NEW CHAPTER TO REGULATE THE SECONDARY EFFECTS OF SEXUALLY
ORIENTED BUSINESSES OPERATING IN THE CITY OF ASPEN AND TO PROVIDE
ADDITIONAL HEALTH AND SAFETY REGULATIONS FOR SEXUALLY ORIENTED
BUSINESSES.
WHEREAS, free speech is a fundamental right guaranteed by both the United States and
Colorado Constitutions; and
WHEREAS, the protection of the right of the people to exercise free speech is properly the
subject of municipal regulation; and
WHEREAS, the City of Aspen is a year-round resort community attracting visitors and
guests from around the world because of its unique community character, surrounding natural
beauty, and healthy environment relatively free of crime and urban blight; and
WHEREAS, sexually oriented businesses in the City of Aspen require special supervision
from public safety and health agencies of the City in order to protect and preserve the health,
safety, and welfare of the patrons of such businesses as well as the citizens and guests of the City;
and
WHEREAS, the City Council and staff have reviewed land use studies and r=ived
testimony concerning the secondary effects of sexually oriented businesses located in other cities
around the United States; and
WHEREAS, from a review of these studies and the testimony from citizens and City staff
there is convincing documented evidence that sexually oriented businesses, because of their very
nature, have a deleterious effect on both existing neighboring businesses and surrounding residential
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areas, causing among other adverse secondary effects, increased cnme and downgrading of
property values; and
WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have
serious objectionable characteristics, particularly when they are operating in close proximity to each
other, thereby contributing to crime, lower property values, urban blight and downgrading of the
quality of life in adjacent areas; and
WHEREAS, the City Council finds that sexually oriented businesses are frequently used for
sexual liaisons of a casual nature and unlawful sexual activities including prostitution; and
WHEREAS, increased crime and unhealthy conduct tend to accompany, concentrate around
and be aggravated by sexually oriented businesses including, but not limited to, prostitution,
pandering, exposing minors to harmful materials, possession and distribution of obscene materials
and child pornography, possession and sale of controlled substances and violent crimes against
persons and property; and
WHEREAS, concern over sexually transmitted diseases, including AIDS, is a legitimate
health concern of the City which demands reasonable regulation of sexually oriented business in
order to protect the health and well being of the citizens and guests of the City; and
WHEREAS, licensing and other police power regulations are legitimate reasonable means
of ensuring accountability by the operators of sexually oriented businesses; and
WHEREAS, the City Council desires to minimize and control adverse secondary effects
caused by the operation of sexually oriented businesses and thereby protect the health, safety and[
welfare of the citizens and guests of the City of Aspen; and
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WHEREAS, the City Council has been advised of the decisions of the United States
e Supreme Court and the Supreme Court of the State of Colorado relating to the regulation of
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sexually oriented businesses; and
WHEREAS, it is not the intent of this ordinance or the intent of Ci~y Council to suppress
any speech activities protected by the First and Fourteenth Amendments to the United States
Constitution or the Constitution of the State of Colorado, but to enact a content-neutral ordinance
which reasonably addresses the adverse secondary effects of sexually oriented businesses.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
Section 1.
That the Municipal Code of the City of Aspen, Colorado, is hereby amended by adding a
new Chapter l4.24 to Title l4 entitled "Sexually Oriented Businesses" , which said Chapter shall
read as follows:
Chapter 141.24
SEXUALLY ORIENTED BUSINESSES
14.24.010
Purpose and description:
1. The purpose of these regulations is to provide for the regulation and
licensing of sexually oriented businesses within the City in a manner which will protect the
property values, neighborhood and residents from the potential adverse secondary effects of
sexually oriented businesses while providing to those who desire to patronize sexually oriented
businesses the opportunity to do so. It is not the intent of this Article to suppress any speech
activities protected by the First and Fourteenth Amendments to the United States Constitution
and the Constitution of the State of Colorado, but to impose content-neutral regulations which
address the adverse secondary effects of sexually oriented businesses. Nothing in this Article
is intended to authorize or license anything otherwise prohibited by law.
2. Sexually oriented businesses are frequently used for unlawful sexual
activities, including prostitution. The concern over sexually transmitted diseases is a
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legitimate health concern of the City which demands reasonable regulation of sexually oriented
businesses to protect the health and well-being of the citizens, including the patrons of sexually
oriented businesses. Licensing of sexually oriented businesses is a legitimate and reasonable
means of ensuring that operators of sexually oriented businesses comply with reasonable
regulations and that operators do not knowingly allow their businesses to be used as places of
illegal sexual activity or solicitation. There is convincing documented evidence that sexually
oriented businesses, because of their nature, have a deleterious effect on both the existing
neighboring businesses and surrounding residential areas, causing increased crime and
downgrading of property values. The purpose of this Chapter is to control adverse effects
from sexually oriented businesses and thereby protect the health, safety and welfare of the
citizens and guests of the City of Aspen, protect the citizens from increased crime, preserve
the quality of life, preserve the property values and character of the surrounding
neighborhoods and deter the spread of urban blight.
3. This Chapter shall not be deemed to authorize or permit any conduct, behavior
or attire on licensed premises which is otherwise prohibited by any City, state, or federal law .
14.24.020
Definitions :
Adult Arcade: 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 (5) or fewer persons per machine at anyone 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: A business having as a substantial and
significant portion of its stock and trade, revenues, space or advertising expenditures, resulting
from the sale, renting or viewing of one or more of the following:
Books, magazines, periodicals or other printed matter, or photographs, films,
motion pictures, video cassettes or video reproductions, laser disks, slides or
other visual representations which depict or describe specific sexual activities or
specified anatomical areas; or
Instruments, devices, or paraphernalia which are designed for specified sexual
activities.
Adult Cabaret: A nightclub, bar, restaurant or similar business which regularly
features:
Persons who appear in a state of nudity; or
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Live performances which are characterized by the exposure of specified
anatomical areas or by specified sexual activities; or
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 Motel: A hotel, motel or similar business which offers private rooms to the
public and provides patrons live performances or 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.
Adult Motion Picture Theater: A business where 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: A theater, concert hall, auditorium, or similar business 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.
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Denartment of Environmental Health or Health Department: The Aspen/Pitkin County
Department of Environmental Health or its authorized employees.
Employee: Includes any person who is paid[ directly or indirectly by the licensee for
services performed on the premises whether such person would otherwise as a matter of law be
classified as an employee, agent, manager, entertainer or independent contractor.
Licensing Officer: The Licensing Officer of the City of Aspen, who shall be the City
Clerk or such person(s) as she shall designate to perform such function. The Licensing Officer
is hereby authorized to act on behalf of the City Council in all matters relating to licensing
except as otherwise provided in this Chapter.
Manager: Any person employed by a sexually oriented business to act as a manager or
supervisor of the employees, finances or patrons of the business or is otherwise responsible for
operation of the business. A Manager may be the licensee if so designated pursuant to Section
14.24.030(B)(14), below.
Peep Booth: A viewing room, other than a private room, of less tllan one hundred fifty
(l50) square feet of floor space upon the premises of a sexually oriented business where there
is exhibited photographs, films, motion pictures, video cassettes, or other video reproductions,
slides or other visual representations which depict or describe specified sexual activities or
specified anatomical areas.
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Person: An individual, proprietorship, partnership, corporation, association or other
legal entity.
Premises: Includes all lands, structures, places and also the equipment and
appurtenances connected or used therewith in any business, and also any personal property
which is either affixed to, or is otherwise used in connection with any such business conducted
on such premises.
Private Room: A room in an adult motel that is not a peep booth, has a bed in the
room, has a bath in the room or adjacent to the room, and is used primarily for lodging.
Sexual Encounter Establishment: A business or commercial establishment, which as
one of its primary business purposes, offers for any form of consideration, a place where two
(2) or more persons may congregate, associate or consort for the purpose of specified sexual
activities or the exposure of specified anatomical areas, when one or more of the persons
exposes any specified anatomical area.
Sexually Oriented Business: An adult arcade, adult bookstore, adult video store, adult
cabaret, adult motel, adult motion picture theater, adult theater, sexual encounter establishment
or other similar business and includes:
The opening or commencement of any sexually oriented business as a new
business.
The conversion of an existing business, whether or not a sexually oriented
business, to a sexually oriented business.
The addition of any sexually oriented business to any other existing sexually
oriented business.
The relocation of any sexually oriented business; or
The continuation of a sexually oriented business in existence on the effective
date of this ordinance.
Specified Anatomical Areas: Are defined as:
Less than completely and opaquely covered: human genitals, pubic region,
buttocks and female breasts below a point above the top of the aureole.
Human male genitals in a discernibly turgid state even if completely and
opaquely covered.
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Specified Sexual Activities: Acts, simulated acts, exhibitions, representations,
depictions or descriptions of:
Human genitals in a state of sexual stimulation or arousal.
Fondling or other erotic touching of human genitals, pubic region, buttocks or
female breast.
Intrusion, however slight, of any object, any part of an animal's body, or any
part of a person's body into the genital or anal openings of any person's body or
into the body of an animal.
Cunnilingus, fellatio, anilingus, masturbation, bestiality, lewd exhibition of
genitals or excretory function.
Flagellation, mutilation or torture for purposes of sexual arousal, gratification,
or abuse.
This definition of specified sexual activities shall not be deemed to authorize or permit
any conduct, behavior or attire on licensed premises which is otherwise prohibited by any
City, state, or federal law .
Stage: A raised floor or platform at least three feet (3 ') above the surrounding floor
measured perpendicularly from the edge of the stage to the surrounding floor and at least
thirty-six (36) square feet in area.
14.24.030
License required:
It shall be unlawful for any person to operate a sexually oriented business without a
license issued by the Licensing Officer under the provisions of this Chapter. The license
required by this Chapter shall be in addition to any other licenses or permits required by the
City of Aspen or the State of Colorado.
A. Form of Applications: All applications shall be written statements upon forms
provided by the Licensing Officer. The truthfulness of all statements upon such forms shall be
sworn to by the applicant before a notary public or other oath-taking official of tlris State. In
the event any person knowingly makes any false statement or omits any pertinent information
on any application, such act or omission shall be grounds for rejection of such application or
suspension and revocation of any license issued upon the basis of such false statement, and
shall be grounds for prosecution for peljury.
B. Contents of Apolications: The application for every license required by and
issued under the authority of the City shall contain:
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l. The name of the person, firm or corporation desiring such license;
2. The residence address of such applicant if an individual, of each of the
individual members of such firm, if a partnership or association, and of each of the directing
officers if a corporation;
3. The local street address, if any, where such business is to be carried on;
the principal place of business if other than the local street address;
4 The year for which such license is sought; and
5. The application must be accompanied by a diagram showing the
configuration of the premises, including a statement of total floor space occupied by the busi-
ness, and designating the use of each room or other area of the premises.
6. The diagram shall designate those rooms or other areas of the premises
where patrons are not permitted.
7. The diagram need not be professionally prepared but must be drawn to a
designated scale or drawn with marked dimensions of the interior of the premises to an
accuracy of plus or minus six inches (+ 6").
8. The diagram shall designate the place at which the license will be
conspicuously posted.
9. No alteration in the configuration of the premises or any change in use
of any room or area as shown on the diagram may be made without the prior written approval
of the Licensing Officer.
10. The Licensing Officer may waive the foregoing diagram for renewal
applications if the applicant adopts a diagram that was previously submitted and certifies that
the configuration of the premises has not been altered since it was prepared and that the use of
any area or room in the premises has not changed.
ll. The applicant must be qualified according to the provisions of this
Chapter and the premises must be inspected by the Fire Marshal, Chief Building Official,
Environmental Health Department, and the Licensing Officer and found to be in compliance
with the law.
l2. Contemporaneously with the submission of an application for a license,
the applicant shall submit evidence from the Zoning Enforcement Officer indicating that the
requirements of Aspen Land Use Code, Title 24 of the Municipal Code, and Section
l4.24.l30 of this Chapter are met unless the applicant's sexually oriented business is an
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existing nonconforming use. In the event that such zoning approval is subject to appeal, no
further action shall be talcen upon such application until such appeal is finally adjudicated.
13. If the applicant is an individual, that person must sign the application for
a license. If the applicant is other than an individual, every person who has a five percent
(5 %) or greater interest in the business must sign the application for a license. If the applicant
is a corporation, all officers, and all directors of the corporation must sign the application for a
license. If the applicant is a limited liability company, every member holding a five percent
(5%) or greater interest in the company and every manager must sign the application for a
license.
l4. The applicant shall designate a Manager, which may be the applicant
provided the applicant shall provide the full name, mailing address, residence ad[dress (if
different from the mailing address), phone number and date of birth.
C. ISSUANCE OF A SEXUALLY ORIENTED BUSINESS LICENSE:
1. The sexually oriented business shall be issued a license within thirty (30)
days after receipt of an application if the requirements set forth in Sections l4.24.030 (A) &
(B) of this Chapter are met, unless the Licensing Officer finds one or more of the following:
a. An applicant is under twenty-one (2l) years of age if seeking a
license to operate an Adult Cabaret which regularly features persons who appear
in a state of nudity, or live performances which are characterized by tlle
exposure of specified anatomical areas or by specified sexual activities; and
eighteen (l8) years of age for any other license to operate a sexually oriented
business.
b. An applicant is overdue in payment to tlle City of taxes, fees,
fmes or penalties assessed against the applicant or imposed upon the applicant in
relation to a sexually oriented business.
c. An applicant has failed to provide information reasonably
necessary for issuance of the license or has knowingly falsely answered a
question or request for information on the application form.
. d. The premises to be used for the sexually oriented business have
not been approved by the Fire Marshal, Chief Building Official, Environmental
Health Department, and the Licensing Officer as being in compliance with
applicable laws and ordinances.
e. The applicant has not been issued a permit by the Zoning
Enforcement Officer indicating the requirements of the Municipal Code are met
and that such permit, ifissued, is not subject to appeal or the applicant's
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sexually oriented business is an existing nonconfonning use under the Municipal
Code.
2. The license, if granted, shall state on its face 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 time.
3. The Fire Marshal, Chief Building Official, Zoning Enforcement Officer,
and Environmental Health Department shall complete their certification that the premises are
in compliance or not in compliance within twenty (20) days of receipt of the application by the
Licensing Officer. Their certifications shall be promptly presented to the Licensing Officer.
The Licensing Officer's inspection shall be completed within thirty (30) days after the receipt
of the application.
4. A denial by the Licensing Officer of the application shall be in
accordance with Section l4.24.030(C)(I) of this Chapter. The applicant may appeal the denial
in accordance with the provisions of Section l4.24.040(H) of this Chapter.
D. MANAGER'S REGISTRATION:
1. It shall be unlawful for any person to work as a manager of a sexually
oriented business without first registering with the Licensing Officer.
2. The registration of a manager with the Licensing Officer is in lieu of the
issuance of a license to a manager.
3. The manager's registration shall be issued or denied in accordance witl1
the criteria for issuance or denial of a license as set forth in Section l4.24.030(C) of this
Chapter.
4. The registration may be suspended or revoked for any grounds for the
suspension or revocation of a license as set forth in Section l4.24.040 of this Chapter.
5. The manager of a sexually oriented business which features live
performances which are characterized by the exposure of specified anatomical areas or by
specified sexual activities shall be at least twenty-one (2l) years of age. Managers of other
types of sexually oriented business shall be at least eighteen (l8) years of age.
E. EMPLOYEE REGISTRATION: Each licensee will provide to the Licensing
Officer the full name, address, telephone number and date of birth of any employee within five
(5) days of employment.
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F. AGENTS RESPONSIBLE:
1. Managing Agent. The managing agent or resident agent of nonresidents
engaging in any activity or enterprise in the City for which a license is
required shall be personally responsible for compliance with this Chapter
by their principals and the activities or enterprises they represent.
2. Agent for Process. Each licensee, if a nonresident of the City, shall
designate an agent resident in the City upon whom may be served any
process notice or order required or permitted under this Chapter.
Failure to appoint a designated agent or to maintain a designated agent
shall be grounds for suspension of any license issued under this Chapter
until such agent is so designated.
3. The managing agent and the agent for process may be the same person.
G. INSPECTIONS:
1. The licensee or the licensee's employees shall permit representatives of
the Police Department, Environmental Health Department, Building Department, Fire
Marshal, Zoning Enforcement Officer, Licensing Officer or other City departments or
agencies to inspect the premises of a sexually oriented business for the purpose of ensuring
compliance with the law as provided for in this Section.
2. City departments and agencies shall conduct such inspections in a
reasonable manner and only as frequently as may be reasonably necessary.
3. Inspections shall take place during the regular business hours of the
sexually oriented business or when any person is on the premises.
4. It shall be unlawful for the licensee or any employee to refuse to permit
such lawful inspection of the premises as provided in this Section.
H. EXPIRATION OF LICENSE: Each license shall expire one year from the date
of issuance and may be renewed only by making application as provided in Sections
l4.24.030 (A) & (B) of this Chapter.
14024.040 License suspension and revocation.
A. Grounds for Suspension: The Licensing Officer shall suspend for a period not
to exceed six (6) months any license issued by the City if he finds that:
l. The licensee failed within five (5) working days to obtain or renew a
business license and pay the requisite occupation tax as required by Title l4 of this Code
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following the receipt of a notice from the City of the licensee's failure to obtain or renew a
business license or to pay the requisite occupation tax;
2. The licensee or any agent or employee of such licensee has violated any
provisions of this Chapter pertaining to his license or any regulation or order lawfully made
under and within the authority of this Chapter relating to the license;
3. Violated or is not in compliance with any Section of this Chapter.
4. Refused to allow an inspection of the sexually oriented business premises
as authorized by this Chapter.
B. Aggravating and Mitigating Circumstances.
In determining an action to be taken as provided in this Section, the Licensing
Officer shall consider the following aggravating and mitigating circumstances:
1. Whether the license has been previously suspended or revoked.
2. Whether the licensee was warned that the conduct involved could lead to
a suspension or revocation.
3. Whether the cause for suspension involves one or several violations.
4.
Whether the violation(s) are technical or substantive in nature.
5. The extent to which the licensee, licensee's agents and employees, as
opposed to patrons, were involved in the violation(s).
6. The extent to which the licensee or licensee's employees had knowledge
of the violation(s).
7. Any corrective or remedial action the licensee has taken to prevent
similar violation(s) in the future.
8. Whether the violation(s) involved the commission of a crime, and if so,
the degree of felony or misdemeanor involved.
9. The extent to which the violation(s) caused personal injuries or property
damage.
10. Whether the licensee has paid damages or made restitution to any person
or entity damaged by the violation(s).
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11. The extent to which the violation(s) posed a significant risk to the health,
safety and welfare of persons on or off of the licensed premises.
12. The length of time over which the violation(s) extended.
13. The extent to which the licensee or licensee's employees realized a
financial gain from the violation(s).
l4. The number of employees, patrons, or both involved in the violation(s).
15. The nature and extent of enforcement action taken by the City or any
law enforcement to detect the violation(s).
l6.
the violation(s).
The involvement of any persons under twenty-one (21) years of age in
l7. The extent to which the licensee or licensee's employees have attempted
to cover up the violation(s), destroy evidence or otherwise hinder the investigation and
detection of the violation(s).
l8. The extent to which the licensee and licensee's employees have acted in
good faith.
C. MANDATORY LICENSE REVOCATION:
1. The Licensing Officer shall revoke a license if the Licensing Officer determines:
a. A license has previously been suspended within the preceding twelve
(l2) months;
b. A licensee gave information knowing that said information was false in
the material submitted to the Licensing Officer;
c. A licensee or employee has knowingly allowed possession, use, or sale
of controlled substances as defined in part 3 of article 22 of title l2 C.R.S. on the premises;
d. A licensee or an employee has knowingly allowed prostitution on the
premises;
e. A licensee or an employee knowingly operated the sexually oriented
business during a period of time when the license was suspended.
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f. Excluding conduct within a private room of an adult motel, a licensee or
employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation,
masturbation or obscene sexual conduct to occur on the premises.
2. When the Licensing Officer revokes a license, the revocation shall continue for
one year, and the licensee shall not be issued a sexually oriented license for one year from the
date revocation became effective.
D. HEARING PROCEDURE:
1. Upon commencement of suspension or revocation proceedings, the Licensing
Officer shall set a time and place for the hearing of the matter.
2. The Licensing Officer shall give the licensee timely notice of the time and place
of the hearing and the violations asserted. Such notice shall be served personally or by mailing
by first-class mail to the last address furnished to the Licensing Officer by the licensee, at least
ten (10) days, including Saturdays, Sundays and legal holidays prior to the hearing. In lieu of
such service, or in addition thereto, a copy of such service, or in addition thereto, a copy of
such notice may be affixed to the principal entrance of the licensed premises which shall be
deemed to be the principal place of business or main office or may be affixed to some
prominent structure on such premises.
3. In any such action, a public hearing shall be granted at which the licensee shall
be afforded an opportunity to be heard, present evidence, cross-examine witnesses, and offer
evidence in mitigation of any violations.
4.
device.
All evidence shall be recorded stenographically or by electronic recording
5. In all such proceedings, the City Attorney or an Assistant City Attorney shall
act on behalf of the City during the hearing.
E. HEARINGS: The Licensing Officer or his designee shall conduct hearings for
suspension or revocation of licenses granted pursuant to this Chapter. The Licensing Officer
shall make findings of fact and conclusions concerning the revocation or suspension of license.
In the event the Licensing Officer has designated another to conduct license revocation or
suspension hearings, said designee shall recommend in writing to the Licensing Officer
findings of fact and a conclusion for disposition of the hearing, a recommendation to be made
within fifteen (l5) days after the close of the hearing. The Licensing Officer shall transmit a
copy of the final findings of fact and conclusion to the licensee as provided hereafter.
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F. NOTICE OF SUSPENSION OR REVOCATION:
1. Upon suspension or revocation of any license required by this Chapter, notice of
such suspension or revocation shall be given by personally serving the licensee with the order
of suspension or revocation or by mailing such order to such person by certified or registered
mail at the business address of the licensee as shown on the license or at the address of the
designated agent. In lieu of such service, or in addition thereto, a copy of such order may be
affixed to the principal entrance of the licensed premises which shall be deemed to be the
principal place of business or main office, or may be affixed to some prominent structure on
the premises.
2. The order shall be effective immediately upon service of notice thereof unless
the order provides otherwise. Service of such order shall be complete upon mailing or
posting.
G. EFFECT OF SUSPENSION OR REVOCATION: Upon the effective date of
suspension or revocation of any license required for a business or activity, the licensee of such
licensed business or activity shall cease and desist from further operation or activity.
H. APPEALS: Any person aggrieved by any final order of the Licensing Officer
after hearing shall have the right to appeal to the City Council by filing a written appeal with
the City Clerk within ten (10) days following the effective date of the action or order
complained of, and such appeal shall have the effect of staying execution of such final order
pending appeal.
1. Contents of Appeal. An appeal shall be in writing and shall set out a
copy of the order appealed from and shall include a statement of the facts relied upon to avoid
such order.
2. Notification to Licensing Officer. At the time of filing of any appeal
with the City Clerk, a copy thereof shall be filed by the applicant with the Licensing Officer.
3. Hearing.
a. The City Clerk shall fix a time and place for hearing the appeal
which shall be at the next regular meeting of the City Council occurring not less than seven (7)
days following receipt of the notice of appeal or the record on appeal, whichever is later, and
shall cause written notice of the same to be served upon the applicant informing him thereof.
The City Clerk shall also give such notice to the Licensing Officer and such Officer may
appear and defend the order.
b. Upon appeal to the City Council of the suspension or revocation,
the Council shall review the records, including the transcript of proceedings and evidence
before the Licensing Officer, and shall determine whether there is substantial evidence in the
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record to support the recommendation of the Licensing Officer. If there is substantial evidence
in the record to support the recommendation of the Licensing Officer, then the Council shall
affirm the decision of the Licensing Officer. If there is not substantial evidence in the record
to support the recommendation of the Licensing Officer, then the Council may reverse the
recommendation of the Licensing Officer or remand the matter back to the Licensing Officer
for further proceedings. No new evidence shall be submitted to the Council unless a majority
of the Council determine that such evidence could not have been reasonably presented at the
time the matter was heard before the hearing officer. If the Council decides to hear new
evidence, it may hear the new evidence or remand the matter to the Licensing Officer.
c. The appellant seeking review of the action of the Licensing
Officer, at the time of the filing of the notice of appeal, shall pay to the City the estimated cost
for preparing a transcript of the proceedings before the Licensing Officer. The cost of
preparing a transcript of testimony before the Licensing Officer shall be charged at rates
ordinarily charged by certified court reporters. The cost of preparing the transcript shall be
estimated by the City Clerk. In the event the cost of the transcript is greater than the cost
estimated by the City Clerk, the appellant shall pay this additional cost within ten (10) days
after billing by the City Clerk. In the event that the cost of the transcript is less than the
estimated sum paid by the appellant, the City Clerk shall refund the excess paid within ten (10)
days after actual cost of the transcript is determined.
I. SUMMARY SUSPENSION: When the conduct of any licensee, agent or
employee is so inimical to the public health, safety and general welfare as to constitute a
nuisance or hazard and thus give rise to an emergency, the Licensing Officer shall have the
authority to summarily order the cessation of business and the closure of the premises pending
a hearing on the question of whether to suspend or revoke the license. Unless waived by the
licensee in writing, the City Council within fifteen (l5) days after the Licensing Officer has
acted shall conduct a hearing upon the summary order and the activity giving rise to such
order. The order shall state the grounds for its issuance and shall give notice of the hearing
and shall be served upon the affected person in the manner prescribed in Section
l4.24.040(D). At such hearing the licensee shall show cause why the summary suspension
should not be made a final order of suspension or revocation.
J. COUNCIL DECISION: EFFECT OF:
I. The decision of the City Council in all cases shall be final and conclusive
and shall be served upon the licensee by personal service, by registered or certified mail, or by
posting as provided in Section l4.24.040(D) of this Chapter.
2.
Civ. P. 106(a)(4).
by Court order.
A decision of City Council is reviewable only by Court under Colo. R.
There shall be no stay of execution pending a review by the Court except
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K. FINE IN LIEU OF HEARING:
1. Upon application, stipulation or admission by the licensee, made ten (10)
days prior to a scheduled suspension or revocation hearing unless waived by the Licensing
Officer, the licensee may request permission to pay a fine in lieu of a healing. Upon the
receipt of the petition, the Licensing Officer or his designee may, in his sole discretion, stay a
proposed hearing and cause any investigation to be made which he deems desirable and may,
in his sole discretion, grant the petition if he is satisfied:
a. That the public welfare and morals would not be impaired by
permitting the licensee to continue operation and that the payment of the fine
will achieve the desired disciplinary purposes;
b. That the licensee has not had his license suspended or revoked,
nor paid any fine in lieu of suspension during the two (2) years immediately
preceding the date of the alleged violations; and
c. That the books and records of the licensee are kept in such
manner that economic loss can be determined with reasonable accuracy
therefrom.
2. The fine accepted shall be the equivalent to twenty percent (20%) of the
estimated gross revenues from the sale of such merchandise or services on the dates of the
alleged violations; except that the fine shall be not less than five hundred dollars ($500.00) nor
more than ten thousand dollars ($10,000.00).
3. Payment of any fine pursuant to the provisions of this Section shall be
payable in full in the form of cash, certified check or cashier's check made payable to the City
of Aspen. The proceeds of the payment of the fine shall be paid into the General Fund of the
City.
4. Upon payment of the fine pursuant to this Section, the Licensing Officer
or his designee shall enter his further order permanently staying the suspension or revocation
hearing.
5. The authority of the Licensing Officer or his designee is limited to:
a. The granting of such stays as are necessary for him to complete
his investigation and make his findings; and
b. If he makes such findings, to the granting of an order
permanently staying the imposition of the hearing; and
c.
The determination of the fine to be imposed.
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6. If the Licensing Officer does not make the findings required in
paragraph 1 of this Section and does not order the hearing permanently stayed, the hearing
shall proceed as scheduled.
7. The determination of the Licensing Officer to deny a fine in lieu of a
hearing, or to allow a fine in lieu of a hearing, and the determination of the amount of the
fine, shall be final decisions committed to agency discretion and not subject to appeal to the
City Council.
14.24.050
Minimum Age Limitations:
1. No person under twenty-one (21) years of age may be admitted to a
sexually oriented business which 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.
2. No person under eighteen (l8) years of age may be admitted to a
sexually oriented business which features non-live entertainment.
14.24.060
Hours of Operation:
l. It shall be unlawful for a sexually oriented business to be open for
business or for the licensee or any employee of a licensee to allow patrons upon the licensed
premises from:
a. two o'clock (2:00) A.M. to seven o'clock (7:00) A.M. on
Mondays through Saturday; and
b. two o'clock (2:00) A.M. to eight o'clock (8:00) A.M., and eight
o'clock (8:00) P.M. to twelve o'clock (l2:00) A.M. (midnight) on Sundays.
2. This Section shall not apply to those areas of an adult motel which are
private rooms.
14.24.070
Peep Booth Regulations:
1. A licensee who has peep booths upon the premises shall comply with all
of the following requirements:
a. The diagram accompanying an application for a license shall
specify the location of one or more manager's stations.
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b. It is fue duty of the licensee to ensure that at least one employee
is on duty and situated in each manager's station at all times fuat any patron is present
inside the premises.
c. 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 for any purpose, excluding restrooms.
Restrooms may not contain fIlm or video reproduction equipment or equipment for
showing slides or photographs. If the premises has two (2) or more manager's stations,
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.
d. It shall be the duty of the licensee and employees present on the
premises to ensure that the view area specified in subsection lc above remains
unobstructed by any doors, walls, merchandise, display racks or other materials at all
times and to ensure that no patron is permitted access to any area of the premises which
has been designated in the application as an area to which patrons will not be permitted.
e. It shall be the duty of the licensee to ensure that all walls shall be
maintained without holes or damage.
f. No peep booth may be occupied by more than one person at any
time.
g. It shall be unlawful for any person having a duty under this
Section to knowingly fail to fulfill that duty.
14.24.080
Lighting regulations:
l. Excluding a private room of an adult motel, the interior portion of the
premises to which patrons are permitted shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place at an illumination of not less than two (2.0) foot-
candles as measured at the floor level.
2. It shall be the duty of the licensee and employees present on the premises
to ensure that the illumination described above is maintained at all times that any patron is
present on the premises.
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14.24.090
Additional regulation - Adult Theaters and Adult Cabare1ls:
l. Any adult cabaret or adult theater shall have one or more separate areas
designated in the diagram submitted as part of the application as a stage for the licensee or
employees to perform as entertainers. Entertainers shall perform only upon the stage. The
stage shall be fixed and immovable. No seating for the audience shall be permitted within
three feet (3 ') of the edge of the stage. No members of the audience shall be permitted upon
the stage or within three feet (3 ') of tlle edge of the stage.
2. It shall be unlawful for the licensee or for any employee to violate any of tlle
requirements of this Section or to knowingly permit any patron to violate the requirements of
this Section.
14.24.100
Conduct for sexually oriented businesses
1. No licensee or employee mingling with the patrons, or serving food or drinks,
shall be unclothed or in such attire, costume or clothing, so as to expose to view any specified
anatomical area.
2. No licensee or employee shall encourage or knowingly permit any person upon
the premises to touch, caress or fondle the breasts, anus or specified anatomical areas of any
person.
3. No licensee or employee shall violate the requirements of this Section.
4. It shall be unlawful for any licensee or employee to knowingly permit a patron
to violate any of the requirements of tllis Section.
14.24.100
Employee Tips:
1. It shall be unlawful for any employee of a sexually oriented business to receive
tips from patrons except as set forth in subsection 3 of this Section.
2. A licensee that desires to provide for tips from its patrons shall establish one or
more boxes or other containers to receive tips. All tips for such employees shall be placed by
the patron of the sexually oriented business into the tip box.
3. A sexually oriented business that provides tip boxes for its patrons as provided
in this Section shall post one or more signs to be conspicuously visible to the patrons on the
premises in letters at least one inch (I ") high to read as follows: "All tips are to be placed in
tip box and not handed directly to the entertainer. Any physical contact between the patron
and the entertainer is strictly prohibited. "
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14.24.120 Adult motel regulations: An adult motel that, in addition to the renting
of private rooms, operates a sexually oriented business as otherwise defined in this Chapter
shall comply with all of the requirements set forth in this Chapter pertaining to business.
14.24.130
Location Restrictions:
A.
LOCATION OF SEXUALLY ORIENTED BUSINESSES
1. It shall be unlawful to locate or operate a sexually oriented
business within any zone district other than the Commercial Core (Ce).
2. It shall be unlawful to locate or operate a sexually oriented
business within three hundred (300) feet of any church, school meeting all requirements of the
compulsory education laws of the state, or other sexually oriented business.
B. MEASUREMENT OF DISTANCE
1. For purposes of this Chapter, distance between two sexually
oriented businesses shall be measured in a straight line, without regard to intervening
structures, from the closest exterior structural wall of each business.
2. For purposes of this Section, distance between sexually oriented
businesses and any church or school shall be measured in a straight line, without regard to
intervening structures or objects, from the nearest point of the building or structure used as
part of the premises where the sexually oriented business is conducted, to the nearest property
line of the premises of a school or church.
14.24.140 Injunction: Any person who operates or causes to be operated a
sexually oriented business without a license is subject to suit or injunction as well as criminal
prosecution.
14.24.150 Penalty Provision: Any person, firm, or corporation, whether as
owner, lessee, sublessee, occupant, or employee, violating any of the provisions of this
Chapter shall be deemed guilty of a misdemeanor, and each such person, firm, or corporation
shall be deemed guilty of a separate offense for each and every day OJ[ portion thereof during
which any violation of any of the provisions of this Chapter is committed, continued, or
permitted, and upon conviction of any such violation such person, firm, or corporation shall be
punished by a fine, imprisonment, or both such fine and imprisonment, as set forth in Section
1.04.080 of this Code.
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Section 2.
Any sexually oriented business operating on me effective date of this ordinance in
violation of Sections l4.24.070, l4.24.080, or l4.24.090 shall be allowed to continue
operating without compliance herewith for a period of thirty (30) days to enable said business
to make whatever structural changes are required to come into compliance; provided,
however, that an application for a license to operate a sexually oriented business is submitted
to the Licensing Officer within seven (7) days of the effective date of this ordinance. Any
sexually oriented business operating on the effective date of this ordinance in violation of
Sections 14.24.070, l4.24.080, or l4.24.090 may seek an extension of the time set forth
above to come into compliance by submitting a request for such an extension to the Licensing
Officer within thirty (30) days of the effective date of this ordinance. The Licensing Officer
may extend the period of time for additional thirty (30) day periods, or less, upon a showing
that the owner cannot reasonably, after good faith and diligent efforts to do so, complete any
necessary structural changes needed to come into compliance within the prescribed period of
time. An appeal of an adverse decision may be made to the City Council in accordance with
Section l4.24.040(H) of this Code.
Section 3.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any
reason held invalid or unconstitutional in a court of competent jurisdiction, such portion shall be
deemed a separate, distinct and independent provision and shall not affect the validity of the
remaining portions thereof.
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1liI11li1B
1Il1t__
Section 4.
This ordinance shall not have any effect on existing litigation and shall not operate as an
abatement of any action or proceeding now pending under or by virtue of the ordinances amended
as herein provided, and the same shall be construed and concluded under such prior ordinances.
A public hearing on the ordinance shall be held on the JJi day of J?yJ 7 /, 1996, in
the City Council Chambers, Aspen City Hall, Aspen, Colorado.
INTRODUCED, READ AND ORDERED PUBLISHED as provided by law by the City
Council of the City of Aspen on the / i3 day of --'-!21 /
,l996.
~~ 7, (~
John S. Bennett, Mayor
ATTEST:
f;/~LJ;;I;:Ap~ ~4h~-
Kathryn& och, City Clerk ~ 7
FINALLY adopted, passed and approved this n day of /In / / . 1996.
~h l, 1'J1~~
John S. ennett, Mayor
ATTEST:
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.._ .................."""""'""''''H''''....
MEtvl0IZ^NDLM
TilE CiTY OF AS!'EN
CITY A'rrORNEY'S OFFICI:
TO:
Mayor and Members of Council
FROM:
, ,,/
John P. Worce'>ier, City Attorney,-,--?~
David Hoefer, Asst. City Attorney
DATE:
May 9,1996
RE:
Ordinance to Regulate Sexually Oriented Businesses
Attached for your consideration and review is a proposed ordinance which, if adopted, would
regulate sexually oriented businesses in the City of Aspen.
TIle proposed ordinance is patterned after a similar ordinance adopted by Colorado Springs in 1992.
We chose their ordinance as a starting point in drafting the proposed ordinance for the City of
Aspen for two main reasons. First, the Colorado Springs ordinance is fairly comprehensive and
second, and perhaps more importantly, the Colorado Supreme Court reviewed their ordinance in
1995. City of Colorado Springs v 2354, Inc., 896 P.2d 272 (Colo. 1995). The court's opinion
analyzes various sections of the ordinance by balancing the First Amendment issues involved
against the police powers of a municipality to regulate in this area. Even though the immediate
concern may be the regulation of live adult nude entertainment, we decided to propose a more
comprehensive ordinance that also addresses other types of sexually oriented businesses. The
adoption of an ordinance to regulate a type of business tllat is not currently operating in a
municipality is legal. Renlon v Playtime Thealres, fne., 475 U.S. 41 (1985)(being prepared with an
ordinance to regulate a type of business that does not currently exist is acceptable); 13792 Thirteen
Mile Road, lne. v City of Warrell, 626 F.Supp. 803 (B.D., Mich. 1985)(there is no need for a
problem to exist, only the potential for problems).
\\' e understand that there are a number of citizens that would like to see City Council adopt an
ordinance that simply outlaws all sexually oriented businesses in the City. TIle United States
Supreme Court and the Colorado Supreme Court, however, over the years have issued numerous
decisions that define the meaning of the Free Speech Clauses of the United. States and Colorado
Constitutions. The proposed' ordinance was drafted with these court decisions in mind. Public
nudity in and of itself is subject to governmental regulation. Erznomik v City of JocksOllville, 422
US. 205, 211 n.7 (1975)(public nudity traditionally is subject to indecent exposure laws). On the
other hand, an entertainment program may not be prohibited "solely because it displays the nude
human figure." Schad v BoroL/gh of MOL/Ill Ephraim, 452 U.S. 61, 67 (1981). In other words,
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nudity "lone "does not place otherwise protected material outsidc the mantle of the First
Amcndment". Evcn nudity, however, is protected speeeh when combined with some form of
expression protected by tile First Amendment. Sou/h Florida Free Beaches, Inc. v City of Miami,
734 F.2d 608 (1Wl Cir. 1984); Marco Lounge, Ine. v City of Federal Heights, 625 P.2d 982, 985
(Colo. 1981)(city zoning ordinance prohibiting live nude entertainment anywhere witilin city
violative of First Amendment because "included within live, nude entertainment are forms of
communication and expression which are protected by tile First Amendment.") In 1990, the
Colorado Supreme Court was required to decide whether an ordinance adopted by Adams County
to regulate live adult entertainment was constitutional. The court concluded after citing various
U.S. Supreme Court decisions that "nude dancing in a commercially operated nude entertainment
establishment arguably involves some degree of constitutionally protected expression." 7250 Corp.
v Board of Counly Commissioners for Adams COLin/y, 799 P.2d 917, 922 (Colo. 1990). The
principle that constitutionally protected expression, however objectionable or offensive, cannot be
prohibited by governmental authority is grounded in tile recognition that "universal experience has
shown tilat such freedom [of expression] is necessary to the perpetuation of our system of
government in its entirety..." Cooper v People ex reI. 'Wyatt, 22 P. 790, 799 (Colo. 1889).
Even tilOugh the First Amendment is implicated, municipalities do have police powers to regulate
sexually oriented businesses to prevent or reduce "adverse secondary effects". YOWlg v American
Mini-Theatres, InE., 427 U.S. 50; Euclid v Amber Realty Company, 272 U.S. 365 (1926); City of
Rel/fOn v Playtime T71Ca/re, Inc., 475 U.S. 41 (1986)(court re-emphasized city's right to regulate as
to time, place and manner); 7250 Corporation v Board of County Commissioners for Adams
Counly, supra; Regency Serviees Corp. v Board of County Conunissiollers for Admns Cowuy, 819
P.2d 1049 (Colo. 1991). The regulations may not be so restrictive that they constitute a prior
restraint upon the exercise of the right to free speech; they must preserve reasonable alternative
means of a=ss to the expressive activity; they may not directly or indirectly limit the content of
protected expression; and they must be narrowly crafted to further a substantial governmental
interest. These constitutional limitations on the regulations of secondary effects should beccme
evident as tilis memo attempts to explain which provisions were included and which provisions (that
may seem logical) were not included in the proposed ordinance.
The purpose of the regulations in tile proposed ordinance is to provide for tlle regulation and
licensing of sexually oriented businesses within the City of Aspen in a manner which will protect
property values, neighborhoods, residents and guests from the potential adverse secondary effects
of sexually oriented businesses. The proposed ordinance recognizes tlle rights of proprietors of
such businesses and those persons who desire to patronize sexually oriented businesses. It is not the
intent of tile proposed ordinance to limit or chill any speech activities protected by the First and
Fourteenth Amendment of the United States Constitution or Article II, section 10, of the Colorado
Constitution. The regulations would impose content-neutral regulations which address the adverse
secondaw effects of sexually oriented businesses in our oommunity. In drafting tilese regulations we
have d.ttempted to identify potential secondary effects by contacting other communities tllat have
dJalt witil sexually oriented businesses and, whhe legally permissible, drafted a regulation tilat
auempts to avoid or mitigate those effects. For second reading and public hearing on this proposed
l'rdinance. we will introduce a number of studies that have been conducted tilroughout the country
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on the sccondary effccts sexually oricnted busincsscs have on a community. Based on these reports,
wc bclicve City Council will be able to make the following determinations: Sexually oriented
businesses are frequently used for unlawful sexual activities, including prostitution. There are
legitimatc concerns ovcr sexually transmitted diseases which require the regulation of sexually
oriented businesses to protect the health and well-being of our citizens and guests. Licensing of
scxually oriented businesses is a legitimate and reasonable means of ensuring tl1at operators comply
Witll reasonable regulations and that operators do not knowingly allow their businesses to be used as
places of illegal sexual activity or solicitation. There is convincing evidence tlmt sexually oriented
businesses have a deleterious effect on both the existing neighboring businesses and surrounding
residential areas, causing increa..<ed crime and downgrading of property values. The purpose of this
ordinance is to prevent or control adverse effects from sexually oriented businesses and thereby
protect the health, safety, and welfare of our citizens and guests.
The Ordinance
The "Whereas" clauses and the "purpose" section of the proposed ordinance restate the critical
balancing of interests: the free speech rights of proprietors and their patrons versus the legitimate
governmental interest in regulating the secondary effects of sexually oriented businesses.
The "Definitions" section of the proposed ordinance may appear to be overly specific, but such
definitions are important to avoid a challenge on the grounds of vagueness. See Purple Onion v
Jackson, 511 F.Supp. 1207. As indicated above, the proposed ordinance was drafted with the intent
that it would apply to certain types of businesses that do not currently operate in the City of Aspen.
However, if the ordinance is to be effective against any future establishments tl1at cause similar
effects as live nude entertainment, it is necessary to identify them in this ordinance.
An important feature of the ordinance is the requirement that an operator must obtain a license to
operate a sexually oriented business. The licensing of sexually oriented businesses have been upheld
as long as the licensing scheme does not constitute an improper prior restraint on the exercise of
free speech. Dumas v City of Dallas, 648 F.Supp. 1061 (D. Tex. 1986) alfd 837 F.2d 1298 (5th
Cir. 1988); SDJ, Inc. v City of Houston, 636 F.Supp. 1359 (S.D. Tex. 1986, alfd 841 F.2d 107
(5tll Cir. 1988). Because a licensing provision necessarily implies that a license may be denied, no
3lternative means of access to the free speech is made available. Thus, a licensing provision
constitutes a prior restraint that subjects certain communications to governmental regulation in
advance of the time such communications are to occur. Such governmental regulations are
presumed to be invalid, City of Lakewood v Plain Dealer Publishing Co.. 486 U.S. 750 (1988),
311d thus, are reviewed by the courts by the strict scrutiny standard of review. In determining
whetller 311 ordinance constitutes a prohibited system of prior restraints courts must determine
whether it contains adequate procedural safeguards to insure that the licensing officer must
detennine whether to issue a license within a defined period of time, that prompt jtldicial review of
such determination is available, whether there is a compelling governmental interest in establishing
,
the licensing scheme, and whether the criteria for issuing licenses established are sufficiently
narrow, objective and definite to prohibit the licensing officer from exercising unfettered discretion.
Plain Dealer Publishing Co., 486 U.S. at 757; Marco Lounge, 625 P.2d at 988.
3
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Section 14.24.030(C)(3) (pg.9) of the proposed ordinance provides that a license shall be issued to
an applicant otherwise satisfying specific requirements of the ordinance within thirty days after
receipt of the application unless the affected premises "have not been approved by the Fire
Marshall, the Chief Building Official, the Zoning Enforcement Officer, Environmental Health
Department, and the City Clerk as being in compliance with applicable laws and ordinances. To
ensure tJlat tJle application is acted upon by the City Clerk within tJlirty days, the ordinance requires
tJlat the referral agencies conduct any necessary inspections and make tJleir determinations of
compliance with applicable laws within twenty days of receipt of tJle application by the City Clerk.
In City of Colorado Springs, 896 P.2d at 28l, the Colorado Supreme Court held that thirty days is
reasonable in light of tJle overall scheme of the ordinance. Indeed, in the Colorado Springs case,
the court noted tJlat a wning permit is a prerequisite to filing an application and thus the time may
be extended for up to forty days.
TIle proposed ordinance allows an applicant to appeal an adverse decision to the City Council
within 10 days of the adverse decision. City Council would then be required to hear the appeal at its
next regularly scheduled meeting occurring at least 10 days after the filing of an appeal. An adverse
decision by City Council could then be appealed to the District Court. The court in Colorado
Sp,ings, supra, upheld very similar administrative and judicial procedural safeguards.
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The ordinance spells out in some detail what must be included in the application. See Section
14.24.030(B) (pg. 7) of the proposed ordinance. In Colorado Springs, supra. the court struck
down a requirement in the Colorado Springs ordinance tJ1at required all stockholders of a
corporation owning at least 5 % of the stock in the corporation to sign the application. The court
reasoned that "[b ]ecause stockholders of a corporation are not in a position to carry out corporate
policies or to respond promptly to notification of an ordinance violation, the requirements that they
sign an application is not justified." ld at 290. The court did, however, acknowledge that a city has
a significant interest in accountability after a violation of the ordinance has occurred. The
infoffilation sought by the application must be "narrowly tailored and sufficiently related to the
City's interest in enforcing tlle Ordinance." ld. The proposed ordinance does require that the
applicant disclose completely who is the owner/operator of the business and who the on-site
manager will be. Such a narrowly tailored request for information is justified by the City's interest
in being able to contact the owner/operator and manager in tJle event that it becomes necessary to
communicate to tJlem notification of Municipal Code violations.
Section 14.24.030(C) (pg.9) of the proposed ordin3Jlce sets forth certain criteria that the City Clerk
must consider before issuing a license. These criteria, as stated above, must be justified by a
compelling interest and narrowly tailored to achieve their objective. They are intended to be
objective criteria that does not require the City Clerk to exercise unfettered discretion in deciding
i whetJler to issue a license. Similar criteria were reviewed by the court in Colorado Springs, supra.
The proposed ordinance includes those that were approved by the court and does not include others
tJlat were disapproved.
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The proposed ordinance as drafted establishes minimum ages for licensees. Section 14.24.050 (pg.
18) of the proposed ordinance also establishes minimum age limits for patrons or any other person
upon the premises of sexually oriented businesses. A distinction is made between businesses that
feature live nude performances and other types of sexually oriented businesses. There is a reason
for thlO distinction. The free speech associated with livlO nude entlOrtainment involves conduct as well
as "speech" ekments. "11le combination of 'specch' and 'nonspeech' elements in the same course
of conduct is a form of expression entitled to some degrlOe of constitutional protection, but '[a]s the
mode of cxpression moves from pure speech to conduct, however, the scope of permissible state
regulation increases." Colorado Springs at 286 quoting from 7250 Corporation, supra at 922.
ThiS, a 21 year old age limitation is reasonable with regards to live, nude dancing establishments,
but not with rlOspect to other types of sexually orientlOd businesses. See also. Boos v Bany, 485
U.S. 312, 321 (1988)(non-obscene, sexually explicit materials involving persons over the age of 17
are protected by tlle First Amendment); Smith v California, 361 U.S. 147 (l959)(there can be no
doubt that 18 to 20 year olds fall within our constitutional command that "every person shall be
free to speak.") City Council may decide that all sexually oriented businesses should be available to
all adult patrons. The proposed ordinance can easily be amended before second reading to
accommodate that choice.
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Not included in the criteria for the issuance of a license is a detenmnation that the applicant is of
goad moral character. The court in Colorado Springs, supra, held that such a provision in the
Colorado Springs ordinance was unconstitutional. The court reasoned that constitutionally protected
expression cannot be prohibited on the basis of discretionary evaluation of the character of the
commentator. ld at 289 citing a number of U.S. Supreme Court cases. See, e.g., Shuttlesworth v
Or)' of Birmingham, 394 U.S. 147 (l969)("[A] municipality may not empower its licensing
offIcials to roam essentially at will, dispensing or withholding permission to speak ... according to
their own opinions regarding the potential effect of the activity in question on the 'welfare,'
. decency " or 'morals' of the community.") The Colorado Springs court concluded this portion of
irs opinion with a quote from the California Supreme Court:
We cannot assume because [an applicant] was once convicted ... [tlle applicant will violate
the law] again, or that if [the applicant] does so, criminal sanctions will not afford an
adequate remedy.... To interpret the ordinance in this case to permit denial of a license
because of a past conviction... would do more tllan create a hazard to protected freedoms;
it would suppress them all together.
1d. at 289, quoting from Perrine v Municipal Court, 488 P .2d 648 (Cal. 1971)(denial of license for
bookstore upon the ground of prior criminal conviction held to be invalid prior restraint).
111e other qitsria to be used by the City Clerk in the proposed ordinance (applicant does not owe
:U1Y ta\es, a$sessments, fmes; the applicant has not lied on the application form; tile premises have
been approved by the Fire Marshal, Chief Building Official, Environmental Health Department,
and Zoning Enforcement Officer) were considered by the Colorado Springs court and found to be
n2,rrowly tailored to achieve a substantial interest in ensuring a safe facility and preventing
neighborhood blight.
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Seclion 14.24.030(0) (pg. 10) of the proposed ordinance requires the registration of a manager
with the City Clerk. Section 14.24.030(E) (pg.10) requires the all employees to be registered with
tile City Clerk as well. These provisions do not require that a background check be performed as
good moral character cannot be used to grant or deny tile registration of managers or other
employees. They do, however, provide the City Clerk Witil essential information to ensure tilat if
any criminal activity L'l.kes place on the premises that tile proper parties may be contacted. These
requirements were upheld by tile Colorado Springs court as being sufficiently narrowly tailored to
ensure compliance with the ordinance and accountability in the event that criminal activity does take
place on tile premises.
Section 14.24.030(G) (pg.ll)of the proposed ordinance requires that tile licensed premises be
available for inspections by representatives of tile Police Department, Environmental Healtil
Department, Chief Building Official, Fire Marshal, Zoning Enforcement Officer, City Clerk, and
otiler city officials to ensure compliance with the ordinance. "The City has a substantial interest in
ensuring compliance with the Ordinance, and inspections are well suited to such a task. The City
also has a substantial interest in preventing unlawful conduct on the premises." Colorado Springs at
291.
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Section 14.24.040 (pg. 11) of the proposed ordinance sets forth grounds and procedures for license
suspension. Very similar provisions were reviewed by the Colorado Supreme Court in the
Colorado Springs case. The court, citing U.S. Supreme Court cases concluded that "[t]he First
Amendment does not bar enforcement of regulations directed at unlawful conduct that manifests no
element of protected expression .., A business engaging in constitutionally protected activities does
not enjoy First Amendment immunity from criminal prosecution. ... These provisions of the
Ordinance are specific and narrow in scope. They limit L'le discretion of the licensing officer to
revoke a license, and, in our view, do not constitute prior restraint." [d. at 292. However, the
court did strike down a provision that required a mandatory revocation if the licensee or any agent
of the licensee was found to be in violation of any law of the U.S., the State of Colorado or local
ordinance. The court's objection was that no criteria were set forth to indicate what circumstances
warrant suspension as opposed to revocation. Colorado Springs, at 297. The attached proposed
ordinance has been drafted to eliminate this problem.
Section 14.24.060 (pg. IS) of the proposed ordinance sets forth hours of operation. The section
prohibits operation on Mondays through Saturday between the hours of 2:00 a.m. and 7:00 a.m.,
and on Sundays between the hours of 12:00 midnight to 7:00 a.m. (The same hours set forth in the
Slale liquor code for premises that obtain a liquor license). The Court in Colorano Springs, upheld
slightly more restrictive hours of operation (Tuesdays through Saturday between 2:00 a.m. until
7:00 a.m.; Mondays between, 12:00 midnight and 7:00 a.m.; and Sundays between 2:00 a.m. and
8:00 a.m.) The court reasoned tilat the hours of operation regulation was a reasonable "time, place
and manner" regulatioil upheld by tile courts in the past. In a r=nt decision by Judge Matsch of
lhe Federal District Court in Denver, however, he held that an hour of operation ordinance in
Adams County which restricted operation of adult motion pictures from 4:00 p. m. to midnight on
,,(onday through Saturday of each week (with a total ban on Sundays) was invalid. Burkey
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N!ol/ogeIllCI/I, II/c. v 17Je Board of COlllIIY COl/llnissioners(or Adams County, _ F. Supp. _
(Case No. 93-M-1589, D. C. Colo., March 4, 1996). In Ulat case Ule court held that "the hours of
operation were not shown to serve Ule stated interest of deterring Ule secondary effects of adult
businesses in a manner sufficient to support this total ban on expression beyond the 48 hours
permitted in each week." Id at 5. The Colorado Supreme Court in 1990 in Ule 7250 Corporation v
171f Board ()( COllnIy Com!11issionenfor Adams COLlnIy, 799 P.2d 917 (Colo. 1990) upheld a 4:00
P.M. to midnight hours of operation contained in an ordinance applied to a live, nude entertainment
ordinance. As pointed out above, Ule combination of "speech" and "conduct" elements in the form
of expression being regulated allows municipalities some greater leeway so long as the regulation
furthers a sufficiently important governmental interest. Nevertheless, the Colorado Supreme Court
decision in 7250 COIporation and Judge Matsch's r=nt decision appear to be at odds. Neither of
these decisions nor the Colorado Springs case provides a thorough analysis of ulis particular issue.
Unlike oUler regulatory provisions in ordinances regulating sexually oriented businesses, there is a
dearUl of opinions on ule issue of hours of operation. I have not discovered a U.S. Supreme Court
opinion that has dealt with this issue. Most cases that I have read have upheld hour of operation
provisions on the grounds that they are a legitimate way of regulating ule secondary effects of adult
businesses, but provide little guidance on the limits of such restrictions. Milchell v Commission on
Adllli EllIfl1ainmem Eslablishmems oflhe Slate of Delaware, 10 F.3d 123 (3rd Cir. 1993)(upheld a
10 p. m. to 10 a. m. restriction Monday through Saturday and a total ban on Sunday); Siar Satellire,
lne. v Biloxi, 779 F.2d 1074 (5th Cir. 1986)(upheld restriction limiting operation of regulated
business to fourteen hours a day six days a week, but noted that the ordinance was enacted after
extensive study was undertaken of secondary effects of adult businesses); Broailway Books, Inc. v
Robem, 642 F.Supp. 486 (B.D. Tenn. 1986)(court upheld prohibition of operation between 3:00
a.m. to 8:00 a.m. on weekdays and between 3:00 a.m. to 12:00 noon on Sundays).
City Council may wish to discuss changing the hours of operation currently stated in the proposed
ordinance. Unfortunately, I cannot give a whole lot of guidance with this particular issue as the
courts have not done so either. While it is clear that restricting hours of operation is permissible,
tllere is no bright line on the limitation. The analysis a court would be required to undertake in
rC\lewing any provision that limited free speech is as follows: (1) whether the regulation is within
the constitutional power of government; (2) if it furthers an important or substantial government
interest; (3) if the government interest is unrelated to the suppression of free expression; and (4) if
Ule incidental restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of Ulat interest. Uniled Slates v O'Brien, 391 U.S. 367 (1968). As noted above, the
fUSI two partS of the test are satisfied. It is the third and fourth parts of tlle test that are problematic.
1 don't believe U1e City would have any difficulty showing a compelling interest in limiting the
hours of operation so that U1ey are identical to those contained in the liquor code. The City has a
legitimate interest in policing the premises and our police patrols are geared towards a 2:00 a.m.
closing time; our residents and guests are entitled te; some time during the night when they can be
:LSsured of a modicum of quiet even in the downtown core area of the City; RFTA service is
l\-pically curtailed after 2:00 a.m. and stranded patrons are more likely to cause problems, etc.
Should Council decide to further restrict the hours of operations, it will be n=ssary to show how
lhose restricted hours are narrowly tailored to avoid or mitigate some identifiable adverse secondary
('1[C(l5.
. .
....
_""llIIfI'IIIlI
Section 14.24.100 (pg.20) of tile proposcd ordinance rcgulates tile handling of tips. In essence it
prohibits employees from receiving tips directly from patrons. If an establishmcnt wishes to allow
its cmployees to receive tips, tile management must provide tip boxes. A similar provision in tile
Colorado Springs ordinance was upheld by the court in Colorado Springs. The court noted that tillS
provision "permit expression to proceed without reference to the content tllereof. Dancers are not
prohibited from communicating protected expression." Id. at 298.
Sections 14.24.070 (pg.l8) tllOugh 14.24.090 (pg. 20) of the proposed ordinance attempt to
regulate peeD booths. lighting. stage construction. and seating for patrons. The Colorado Springs
court upheld very similar regulations on the same basis that it upheld the requirement for tip boxes.
They are content-neutral regulations that do not impede in any way the communication of protected
expression.
TIle proposed ordinance does not impose a licensing fee as the City Code already requires any
business to obtain a business license and pay an occupation tax based upon the number of
employees employed. Licensing fees for First Amendment activity must be reasonably related to
the cost of administering the license. Dumas v City of Dallas, 648 F.Supp. 1061 (N.D. Tex. 1986).
Presumably, our occupation tax already recovers the cost for any licensing activities required.
.
A regulation that attempts to restrict the location of sexually oriented businesses is permitted. Court
cases have allowed cities to require the dispersal of such businesses; City of Renton v Playtime
T)leatre, IIle., supra, or to concentrate them in certain areas, Young v American Mini-Tfu?atres.
Ine., 427 U.S. 50. In 7250 Corporation v Board of Cowuy Commissioners for Adams Cowuy, 799
P.2d 917 (Colo. 1990), the Colorado Supreme Court upheld an ordinance provision that prohibited
nude entertainment establishments from operating within 500 feet of any residentially zoned area,
school or church property. The proposed ordinance has a similar prohibition, but has been reduced
to 300 feet for reasons that follow. See Section 14.24.130 (pg.20). TIle proposed ordinance limit,
the establishment of sexually oriented businesses to the Commercial Core (CC) zone district in the
city. The CC zone district currently permits "nightclubs". Staff recommends that the permissible
zone be tile CC area as it will better facilitate police and public safety patrols (that is where most of
the night time activity presently occurs); there would be minimum intmsion on existing and future
residential uses; and, it would keep all adult uses (liquor licensed premises and adult businesses)
relatively "clustered".
In drafting regulations that essentially limit where a business may locate, care must be taken to
ensure that "tllere are alternative avenues of communication" or the ordinance will fail. In other
words, the limitations on permitted locations can't be so restrictive that as a practical matter no, or
very few, locations are actually available. Walnut Properties. Inc. v City of Whittier, 861 F.2(l1102
(9th CiL 1988)(court struck down ordinance vi'hich "completely foreclosed any r~onable
opportunity to operate ... did not provide for alternative avenue of communication").'Some coufu
have looked at the motivation of the govern1mg body in establishing permitted locations <Ind have
struck down ordinances tllat attempted to confme sexually oriented businesses to the most
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unattractive, inaccessible and inconvenient areas. Basiardancs v Or)' of Ca!vesron, 682 F.2d 1203
(5Ul Cir. 1982).
Allached hereto is a map depicting the CC zone district in Ule City. As you can see, it is not a very
large are.,. The proposed ordinance does not have a restriction limiting U,e location of a sexuaUy
oriented business to a residential area bccause if it did, it would furUler limit U,e available area. The
proposed ordinance does require that sexually oriented businesses be spaced from each other by at
least 300 feet (approximately one City block). It also prohibits U,e location wiUlin 300 feet of any
church or school. (The only building affected by this restriction is 51. Mary's Church). In sum, the
City may regulate the location of sexually oriented businesses, but if the proper zone district for
such establishments is U,e CC zone, the available area makes it difficult to make the distance
requirements very long.
I apologize for the length of this memo and the need to be so legal. It may be helpful to my
successor some time in the future as s/he tries to figure out why we drafted U,e ordinance the way
we did. 1 believe the proposed ordinance will sustain any legal challenge that it may face. I can't
obviously predict whether it wiU be challenged, but each provision attempts to balance the First
Amendment issues with the City's legitimate interests in regulating the secondary effects of sexually
oriented businesses in our community. Between first and second reading of the proposed ordinance,
this office will continue to research seccndary effects that have been encountered in other
communities and the legal issues involved. If amendments are required, we will present them to
you at that time. Finally, I should note that if the City encounters any secondary effects of having a
sexually oriented business in our community in the future that were not contemplated in the
proposed ordinance, the ordinance can be amended at that time to de.al with U,Ose effects.
If you have any questions regarding any of the issues raised above, please feel free to stop by the
office.
cc; City Manager
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NATIONAL LAW CENTER FOR
CHILDREN AND FAMILIES
SUMMARY OF LAND USE STUDIE:S
1. Phoenix, Arizona
2. Tucson, Arizona
3. Garden Grove, California
4. Los Angeles, California
5. Whittier, California
6. Indianapolis, Indiana
7. Minneapolis, Minnesota
I,
8. Cleveland, Ohio
9. Oklahoma City, Oklahoma
10. Amarillo, Texas
11. Austin, Texas
12. Beaumont, Texas
13. Houston, Texas
14. Seattle, Washington
@ National Law Center for Children and Families 1991, 1994
i~
4103 Chain Bridge Road, Suite 410, Fairfax, Virgina 22030-4105 (703) 691.4626
1221 E. Dyer Road, Suite 225, Santa Ana, California 92705 (714) 435-9090
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NATIONAL LAW CENTER SlMMARY OF THE
lPHOENIX, ARIZONA
LAND USE STUDY
DATED MAY 25, 1979
The study examines crime statistics for 1978 comparing areas which have sexually
oriented businesses with those that do not The results showed a marked increase in sex offenses
in neighborhoods with sexually oriented businesses, and also proved increases in property and
violent crimes as well. This study is not unique but is unusually significant, in covering the issue
of property crimes more extensively.
Three study areas (near locations of sexually oriented businesses) and three control areas
(with no sexually oriented businesses) were selected. The study and control areas were paired
according to the number of residents, median family income, percentage of non-white population,
median age of population, percentage of dwelling units built since 1950, and percentage of acreage
used for residential and non-residential purposes.
Three categories of crinlinal activity were included in the study: property crimes (burglary,
larceny, auto theft), violent crimes (rape, murder, robbery, assault), and sex crimes (rape, indecent
exposure, lewd and lascivious behavior, child molestation).
On average, the number of sex offenses was 506% greater in neighborhoods where
sexually oriented businesses were located. In one of the neighborhoods the number was l,OOO%
above the corresponding control area. Of the sex offenses, indecent exposure was the most
common offense and the largest contributor to the increase of crimes in areas where sexually
oriented businesses were located. Even without considering the crime of indecent exposure, the
number of other sex crimes, such as rape, lewd and lascivious behavior, and child molesration,
was 132% greater than in control areas without sexually oriented businesses.
On average the number of property crimes was 43% greater in neighborhoods where
sexually oriented businesses were located, and the number of violent crimes was 4% higher in
those areas.
The Phoenix ordinance requires sexually oriented businesses to locate at least 1,000 feet
from another sexually oriented business and 500 feet from a school or residential zone. Approval
by the City Council and area residents can waive the 500 foot requirement. A petition signed by
51 % of the residents in the 500 foot radius who do not object must be filed and be verified by the
Planning Director.
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~ National L:",CCCHcr for Childrm and ElIT1ilics
NATIONAL IA W CENTER SlMMARY OF TIlE
TUCSON, ARIZONA
LAND USE STUDY
DATED MAY 1, 1990
OVERVIEW: This report is a memorandum from Police Department Investigative Services to
the City Prosecutor describing events and activities at "adult entertainment bookstores and
establishments" that demonstrate the need for stronger ordinances. Investigations had been in
progress since 1986 following numerous complaints of illegal sexual activity and unsanitary
conditions.
FINDINGS: Officers found a wide variety of illegal sexual conduct at all adult businesses. At
virtually every such business, employees were arrested for prostitution or obscene sex shows.
Dancers were usually prostitutes where, for a price, customers could observe them perfom1ing live
sex acts. At several businesses, customers were allowed inside booths with dancers and
encouraged to disrobe and masturbate. Many times, dancers would require customers to expose
themselves before they would perform. Underage dancers were found, the youngest being a 15
year old female.
a
.
Within peep booths, officers found puddles of semen on the floor and walls. lf customers
had used tissues, these were commonly on the floor or in the hallway. On two occasions, fluid
samples were collected from the booths. In the ftrst instance, 21 of 26 samples (81 %) tested
positive for semen. In the second sampling, 26 of 27 fluid samples (96%) tested positive for
semen. "Glory holes" in the walls between adjoining booths facilitated anonymous sex acts
between men.
RECOMMENDATIONS: (l) The bottom of the door in peep booths must be at least 30 inches
from the floor so that an occupant can be seen from the waist down when seated. (2) The booth
cannot be modified nor can a chair be used to circumvent the visibility of the client. (3) Employee
licensing procedures that include a police department background check should be put in effect.
(4) In the event of a denied or revoked license, the requirement of a hearing before any action is
taken.
~ N:uiooaJ L1v.Cmrcr forChildrm and f.lmilies
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NATIONAL LAW (ENtER SlMMARY OF THE
GARDEN GROVE, CAliFORNIA
LAND USE STUDY
DATED SEPTEMBER 12, 1991
OVERVIEW: This report by independent consultants summarizes statistics to determine whether
adult businesses should be regulated because of their impact on the community in terms of crime,
decreased property values and diminished quality of life. Statistics were measured from 1981 to
1990, and included crime data and surveys with real estate professionals and city residents.
Garden Grove Boulevard, which has seven adult businesses, was selected as the study area. The
study incorporated many control factors to insure accurate results. The report includes a brief legal
history of adult business regulation and an extensive appendix with sample materials and a
proposed statute.
CRIME: Crime increased significantly with the opep.ing of an adult business, or with the
expansion of an existing business or the addition of a bar nearby. The rise was greatest in
"serious" offenses (termed "Part In crimes: homicide, rape, robbery, assault, burglary, theft and
auto theft). On Garden Grove Boulevard, the adult businesses accounted for 36% of all crime in
the area. In one case, a bar opened less than 500 feet from an adult business, and serious crime
within 1,000 feet of that business rose more than 300% the next year.
REAL ESTATE: Overwhelmingly, respondents said that an adult business within 200-500 feet
of residential and commercial property depreciates that property value. The greatest impact was on
single farnily homes. The chief factor cited for the depreciation was the increased crime associated
with adult businesses.
HOUSEHOLD SURVEYS: lIS calls were completed in a random sample of households in the
Garden Grove Boulevard vicinity. The public consensus was that adult businesses in that area
were a serious problem. Nearly 25% of the surveyed individuals lived within I,OOO feet of an
adult business. More than 21 % cited specific personal experiences of problems relating to these
businesses, including crime, noise, litter, and general quality of life. 80% said they would want to
move if an adult business opened in their neighborhood, with 60% saying they "would move" or
"probably would move." 85% supported city regulation of the locations of adult businesses, with
78% strongly advocating the prohibition of adult businesses within 500 feet of a residential area,
school or church. Women commonly expressed fear for themselves and their children because of
adult businesses.
RECOMMENDATIONS: The report concludes that adult businesses have a "real impact" on
everyday life through harmful secondary effects and makes four recommendations: (l) Keep
current requirement of 1,000 feet separation between adult businesses; (2) Prohibit adult
establishments within 1,000 feet of residential areas; (3) Enact a system of conditional use permits
for adult businesses with police department involvement in every aspect of the process; and (4)
Prohibit bars or taverns within I,OOO feet of an adult business.
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~ National u",Ccnrcr for Childrm and f=ilics
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BIlIBlllll
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NATIONAL LAW CENtER StMMARY OF THE
L OS ANGELES, CAUFOMTIA
LAND USE STUDY
DATED JUNE, 1977
OVER VIEW: The Department of City Planning studied the effects of the concentration of
sexually oriented businesses on surrounding propenies for the years 1969..75 (a time of
proliferation for such businesses). The repon focuses on five areas with the greatest concentration
of these businesses (compared to five "control" areas free of them), and cites data from propeny
assessments/sales, public meeting testimony, and responses from two questionnaires (one to
business/residential owners within a 500 foot radius of the five study areas and a second to
realtors/real estate appraisers and lenders). Crime statistics in the study areas were compared to the
city as a whole. Also included: a chart of sexually oriented business regulations in eleven major
cities, details of current regulations available under state/municipal law, and appendices with
samples of questionnaires, letters, and other study materials.
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PROPERTY: While empirical data for 1969-75 did not conclusively show the relation of property
valuations to the concentration of sexually oriented businesses, more than 90% of realtors, real
estate appraisers and lenders responding to city questionnaires said that a grouping of such
businesses within 500-I,OOO feet of residential propeny decreases the market value of the homes.
Also, testimony from residents and business people at two public meetings spoke overwhelmingly
against the presence of sexually oriented businesses citing fear, concern for children, loss of
customers and difficulty in hiring employees at non-adult businesses, and the necessity for
ch urches to provide guards for their parking lots.
CRIME: More crime occurred in areas of sexually oriented business concentration. Compared to
city-wide statistics for 1969-75, areas with several such businesses experienced greater increases in
pandering (340%), murder (42.3%), aggravated assault (45.2%), robbery (52.6%), and purse
snatching (17%). Street robberies, where the criminal has face to face contact with his victim,
increased almost 70% more in the study areas. A second category of crime, including other
assaults, forgery, fraud, counterfeiting, embezzlement, stolen property, prostitution, narcotics,
liquor laws, and gamblmg increased 42% more in the study areas over the city as a whole.
RECOMMENDATIONS: The study recommended distances of more than a I,OOO feet
separating sexually oriented businesses from each othe~, and a minimum of 500 feet separation of
such businesses from schools, parks churches and residential areas.
~ Na.tional Law::cnlff lOr ChikJIm and Families
NATIONAL IA W (ENflER SlMMARY OF THE
WlllTTIER, CALIFORNIA
LAND USE STUDY
DATED JANUARY 9, 1978
OVERVIEW: After experiencing a rapid growth of sexually oriented businesses since 1969, the
Whittier City Council commissioned a study of the effects of the businesses on the adjacent
residential and commercial areas. At the time of the study, Whittier had 13 "adult" businesses: 6
model studios, 4 massage parlors, 2 bookstores, and 1 theater. Utilizing statistics, testimonies, and
agency reports, the study compared two residential areas and four business areas over a span of 10
years (1968-1977). One residential area was near the largest concentration of adult businesses, the
other had no commercial frontage but was chosen because of similar street patterns, lot sizes and
number of homes. For businesses, Area I had six adult businesses, Area 2 had one, Area 3 had
three, and Area 4 had none. 1973 was selected as the year to compare before and after effects of
the adult businesses. Two chief concerns cited in the report are residential and business occupancy
turnovers and increased crime.
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OCCUPANCY TURNOVER: After 1973, 57% of the homes in the adult business area had
changes of occupancy, compared to only 19% for the non-adult business area. Residents
complained of "excessive noise, pornographic material left laying about, and sexual offenders
(such as exhibitionist) venting their frustrations in the adjoining neighborhood." Citizens also
expressed concern about drunk drivers coming into the area. Business Area I, with the most
concentration of adult businesses (6), experienced a 134% increase in annual turnover rate. Area 3,
with three adult businesses at one location, showed a 107% turnover rate. Area 2 (with I adult
business) had no measurable change and Area 4 (with no commercial or adult businesses)
experienced a 45% decrease in turnover from similar periods.
CRIME: The City Council looked at the two residential areas for the time periods of 1970-73
(before adult businesses) and 1974-77 (after adult businesses). In the adult business area, criminal
activity increased 102% (the entire city had only an 8.3% increase). Certain crimes skyrocketed
(malicious mischief up 700%; all assaults up 387%; prostitution up 300%). All types of theft
(petty, grand, and auto) increased more than 120% each. Ten types of crime were reported for the
first time ever in the 1974-77 period.
RECOMMENDATIONS: The Council's report recommended a dispersal type ordinance that
prohibits adult businesses closer than 500 feet to residential areas, churches and schools.
Distances between adult businesses was recommended at 1,000 feet. In addition, the study
proposed a 1,000 foot separation from parks because of their use by citizens after normal working
hours. Adult businesses would be given an 18-36 month amortization period (if the change
involved only stock in trade, a 90 day period was recommended).
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~ N:lUomI12\'.CcnlCr lor Children and r-amilics
NATIONAL IA W CENtER SlMMARY OF TIffi
INDIANAPOliS, INDIANA
LAND USE STUDY
DATED FEBRU~RY, 1984
OVERVIEW: After a 10 year growth in the number of sexually oriented businesses (to a total of
68 on 43 sites) and numerous citizen complaints of decreasing property values and rising crime,
the city compared 6 sexually oriented business "study" areas and 6 "control" locations with each
other and with the city as a whole. The study and control areas had high population, low income
and older residences. In order to develop a "best professional opinion," the city collaborated with
Indiana University on a national survey of real estate appraisers to detennine valuation effects of
sexually oriented businesses on adjacent properties.
CRIME: From 1978-82, crime increases in the study areas were 23% higher than the control
areas (46% higher than the city as a whole). Sex related crimes in the study areas increased more
than 20% over the control areas. Residential locations in the study areas had a 56% greater crime
increase than commercial study areas. Sex related crimes were 4 times more common in
residential study areas than commercial study areas with sexually oriented businesses.
e
REAL EST ATE: Homes in the study areas appreciated at only 1/2 the rate of homes in the
control areas, and 1/3 the rate of the city. "Pressures within the study areas" caused a slight
increase in real estate listings, while the city as a whole had a 50% decrease, denoting high
occupancy turnover. Appraisers responding to the survey said one sexually oriented business
within I block of residences and businesses decreased their value and half of the respondents said
the immediate depreciation exceeded IO%. Appraisers also noted that value depreciation on
residential areas near sexually oriented businesses is greater than on commercial locations. The
report concludes: "The best professional judgment available indicates overwhelmingly that adult
entertainment businesses -- even a relatively passive use such as an adult bookstore -- have a
serious negative effect on their immediate environs."
RECOMMENDATIONS: Sexually oriented businesses locate at least 500 feet from residential
areas, schools, churches or established historic areas.
~ Natioml L3'>.Ccruer lOr Childrm and I'mlilies
e
e
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NATIONAL IA W <ENtER StMMARY OF THE
MINNEAPOLIS, :MlNNESOTA
LAND USE STUDY
DATED OcrOBER, 1980
OVERVIEW: This report is divided into two sections: the relationship of bars and crime and the
impact of "adult businesses" on neighborhood deterioration. In the study, an "adult business" is
one where alcohol is served (including restaurants) or a sexually oriented business (i.e., saunas,
adult theaters and bookstores, rap parlors, arcades, and bars with sexually oriented entertainment).
Census tracts were used as study areas and evaluated for housing values and crime rates. Housing
values were determined by the 1970 census compared to 1979 assessments. Crime rates were
compared for 1974-75 and 1979-80. The study is strictly empirical and reported in a formal
statistical manner; therefore it is difficult for layman interpretation of the data.
FINDINGS: The report concludes that concentrations of sexually oriented businesses have
significant relationship to higher crime and lower property values. Other than statistical charts, no
statements of actual crime reports or housing values are included in the report thus, the lay reader
has only the most generalized statements of how the committee interpreted the empirical data.
RECOMMENDATIONS: First, that adult businesses be at least 1/10 mile (about 500 feet) from
residential areas. Second, that adult businesses should not be adjacent to each other or even a
different type of late night business (Le., 24-hour laundromat, movie theaters). third, that adult
businesses should be in large commercial wnes in various parts of the city (to aid police patrol and
help separate adult businesses from residential neighborhood). The report said "policies which
foster or supplement attitudes and activities that strengthen the qualities of the neighborhoods are
more likely to have desired impacts on crime and housing values than simple removal or
restriction of adult businesses."
~ NaDomll2\\CmIff for Children and f-amil0s
e
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NATIONAL LAW (ENtER SlMMARY OF TIlE
CLEVELAND, Omo
LAND US~ STUDY
DATED AUGUST 24, 1977
OVERVIEW: This police department report is taken from information given by Captain Delau
participating in a panel discussion at the National Conference on the Blight of Obscenity held in
Cleveland July 28-29, 1977. The topic was "The Impact of Obscenity on the Total Community."
Crime statistics are included for 1976 robberies and rapes. Areas evaluated were census tracts
(204 in the whole city, 15 study tracts with sexually oriented businesses). At the time of the study,
Cleveland had 26 pornography outlets (8 movie houses and 18 bookstores with peep shows).
their location was not regulated by city wning laws.
FINDINGS: For 1976, study tracts had nearly double the number of robberies as the city as a
whole (40.5 per study tract compared to 20.5 for other city tracts). In one study tract with five
sexually oriented businesses and 730 people, there were 136 robberies. In the city's largest tract
(13,587 people, zero pornography outlets) there were only l4 robberies. Of the three tracts with
the highest incidence of rape, two had sexually oriented businesses and the third bordered a tract
with two such businesses. In these three, there were 41 rapes in 1976 (14 per tract), nearly seven
times the city average of 2.4 rapes per census tract.
CONCLUSION: "Close scrutiny of the figures from the Data Processing Unit on any and every
phase of the degree of crime as recorded by census tracts indicates a much higher crime rate where
the pornography outlets are located."
~ i'Gtiorullav.Ccn1Cr lOr ChildIm and r-amilies
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NATIONAL IA W CENTER SlMMARY OF THE
OKLAHOMA CITY, OKlAHOMA
LAND Us E STUDY
DATED MARCH 3, 1986
OVERVIEW: This study contains the results of a survey of lOG Oklahoma City Real Estate
Appraisers. Appraisers were given a hypothetical situation and a section to comment on the
effects of sexually oriented businesses in Oklalloma City. The hypothetical situation presented a
residential neighborhood bordering an arterial street with various commercial properties which
served the area. A building vacated by a hardware store was soon to be occupied by an "adult"
bookstore. No other sexually oriented businesses were in the area and no other vacant commercial
space existed. With less than a one month response time, 34 completed surveys were received by
the city.
FlNDINGS: 32% of the respondents said that such a bookstore within one block of the residential
area would decrease home values by at least 20%. Overwhelmingly, respondents said an "adult"
bookstore would negatively effect other businesses within one block (76%). The level of
depreciation is greater for residents than businesses. The negative effects on property values drop
sharply when the sexually oriented business is at least three blocks away. In the subjective portion,
86% of the respondents noted a negative impact of sexually oriented businesses on Oklahoma
City. Frequent problems cited by the appraisers included the attraction of undesirable clients and
businesses, safety threats to residents and other shoppers (especially children), deterrence of home
sales and rentals, and immediate area deterioration (trash, debris, vandalism).
CONCLUSIONS: Oklahoma City's findings supported results from other national studies and
surveys. Sexually oriented businesses have a negative effect on property values, particularly
residential properties. The concentration of sexually oriented businesses may mean large losses in
property values.
~ NltionaJ LaifA01fCr foc Chiklferl and PJrnilics
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NATIONAL LAW (ENfER SlMMARY Of' TIlli
AMARILLO, TEXAS
LAND Us E STUDY
DATED SEPTEMBER 12, 1977
OVERVIEW: This Planning Department report cites several sources including national news
magazines, "adult business" ordinances from other cities, an American Society of Planning
Officials report and pertinent Supreme Court decisions. Lengthy explanation of the Miller test
(with legal definitions), discussion of Young v. American Mini Theatres, and a comparison of the
Boston and Detroit zoning models are included. The city defined "adult businesses" as taverns,
lounges, lounges with semi-nude entertainment, and bookstores or theaters with publications
featuring nudity and explicit sexual activities. (At the time, Amarillo had 3 such theaters and 4
bookstores with space for such publications).
FINDINGS: The police department provided an analysis showing that areas of concentrated
"adult only" businesses had 2 1/2 times the street crime as the city average. The Planning
Department concluded that concentrations of these businesses have detrimental effects on
residential and commercial activities caused by I) noise, lighting and traffic during late night hours
2) increased opportunity for street crimes and 3) the tendency of citizens to avoid such business
areas. The study noted that lack of zoning regulations would lead to concentrations of sexually
oriented businesses (causing increased crime) or more such establishments locating near
residential areas or family and juvenile oriented activity sites (churches, parks, etc.)
RECOMMENDATIONS: I) Adult businesses locate I,OOO feet from each other. No
recommended distance was specified from residential zones or family/juvenile activities. 2) City
development of an amortization schedule and permit/licensing mechanism. 3) City regulation of
signs and similar forms of advertising. 4) Vigorous enforcement of State Penal Code, especially
relating to "Harmful to Minors." 5) City amendments prohibiting minors from viewing or
purchasing sexually oriented materials (enforced physical barriers).
~ NJIionaJ lav.Cm1ff lOr Childrm and r=ilies
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NATIONAL LAW <ENTER SlMMARY OF THE
AUSTIN, TEXAS
LAND USE STUDY
DATED MAY 19, 1986
OVERVIEW: The report was the basis for developing an amendment to existing sexually
oriented business ordinances. At the time, 49 such businesses operated in Austin, mostly
bookstores, theaters, massage parlors and topless bars. The study examined crime rates, property
values, and trade area characteristics.
The report focused on sexually related crimes in four study areas (with sexually oriented
businesses) and four control areas (close to study areas and similar). Two study areas had one
sexually oriented business and the others had two such businesses. To determine the effects of
these businesses on property values, the city sent surveys to 120 real estate appraising or landing
fmns (nearly half responded). For trade area characteristics, three businesses (a bookstore, theater
and topless bar) were observed on a weekend night to determine customer addresses.
CR1ME: Sexually related crime ranged from 177-482% higher in the four study areas than the
city average. In the two study areas containing two sexually oriented businesses, the rate was 66%
higher than in the study areas with one such business. All control areas had crime rates near the
city average.
REAL ESTATE: 88% said that a sexually oriented business within one block of a residential area
decreases the value of the homes (33% said depreciation would be at least 20%). Respondents
also said such a business is a sign of neighborhood decline, making underwriters hesitant to
approve the 90-95% financing most home buyers require. They said commercial propeny is also
negatively effected by such businesses.
TRADE AREA CHARACfERISTICS: Of 81license plates traced for owner address, only 3
lived within one mile of the sexually oriented business. 44% were from outside Austin_
RECOMMENDA TIONS: l) Sexually oriented businesses should be limited to highway or
regionally-oriented zone districts. 2) Businesses should be dispersed to avoid concentration. 3)
Conditional use permits should be required for these businesses.
~ N::Hiomll"v.Ccrucr lOr ChildJm and r-amil6
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NATIONAL LAW CENTER SlMMARY OF TIlE
BEAlJMONT, TEXAS
LAND USE STUDY
DATED SEPTEMBER 14, 1982
OVERVIEW: This report by the city Planning Department encourages amendments to existing
"adult business" ordinances to include eating or drinking places featuring sexually oriented
entertainment (strippers. etc.). Zoning laws required "adult uses" to locate 500 ft. from residential
areas; 300 ft. from any other adult bookstore, adult theater, bar, pool hall or liquor store; and l,OOO
feet from a church, school, park, or recreational facility where minors congregate.
CRIME: Police verified that bars, taverns, and lounges (especially those with sexually oriented
entertainment) are frequent scenes of prostitution and the sale/use of narcotics. On the whole, all
criminal activity was higher at sexually oriented businesses.
RECOMMENDATIONS: I) Add eating/drinking places that exclude minors (under Texas law).
unless accompanied by a consenting parent, guardian or spouse. 2) Require specific permits for
areas wned as General Commercial-Multiple Family Dwelling Districts. 3) Reduce the required
distance of sexually oriented businesses from residential areas, schools, parks. and recreational
facilities from I,OOO to 750 ft.
~ NaJioruJ L:lv.('~ lOr Childn:n and f=ilies
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NATIONAL IA W rnNfER SlMMARY OF THE
HOUSTON, TEXAS
LAND Us E STUDY
DATED NOVEMBER 3, 1983
OVERVIEW: Report by the Committee on the Proposed Regulation of Sexually Oriented
Businesses determining the need and appropriate means of regulating such businesses. Four
public hearings provided testimony from residents, business owners, realtors, appraisers, police,
and psychologists. The committee and legal department then reviewed the transcripts and drafted a
proposed ordinance. More hearings obtained public opinion on the proposal and the ordinance
was refined for vote by the City Council.
TESTIMONY: The testimony was summarized into six broad premises: (1) The rights of
individuals were affirmed. (2) Sexually oriented businesses can exist with regulations that
minimize their adverse effects. (3) The most important negative effects were on neighborhood
protection, community enhancement, and property values. (4) Problems increased when these
businesses were concentrated. (5) Such businesses contribute to criminal activities. (6)
Enforcement of existing statutes was difficult.
ORDINANCE: (1) Required permits for sexually oriented businesses (non-refundable $350
application fee). (2) Distance requirements: 750 ft. from a church or school; I ,000 ft. from other
such businesses; I ,000 ft. radius from an area of75% residential concentration. (3) Amortization
period of 6 months that could be extended by the city indefinitely on the basis of evidence. (4)
Revocation of permit for employing minors (under 17), blighting exterior appearance or signage,
chronic criminal activity (3 convictions), and false permit information. (5) Age restrictions for
entry.
~ Nuioml La1M::mtcr rOf Childrm and f-amilie5
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NATIONAL lAW a:mER SlMMARY OF urn
SEATTLE, WASIDNGTON
LAND USE STUDY
DATED MARCH 24, 1989
OVERVIEW: The report concerns a proposed amendment to add topless dance halls to existing
land use regulations for "adult entertainment establishments." Seattle had eight such dance halls
(termed "adult cabarets"), six established since 1987. The study relies on reports from a number
of cities, including Indianapolis, Los Angeles, Phoenix, Austin and Cleveland.
FINDINGS: The increased number of cabarets resulted in citizen complaints, including phone
calls, letters (from individuals and merchants associations), and several petitions with hundreds of
signatures. Protests cited decreased property values; increased insurance rates; fears of burglary,
vandalism, rape, assaults, drugs, and prostitution; and overall neighborhood deterioration. The
report notes that patrons of these cabarets most often are not residents of nearby neighborhoods.
Without community identity, behavior is less inhibited. Increased police calls to a business, sirens,
and traffic hazards from police and emergency vehicles are not conducive to healthy business and
residential environments.
RECOM!v1ENDA TIONS: Since city zoning policy is based on the compatibility of businesses,
the report recorrunends that the cabarets locate in the same zones as "adult motion picture theaters."
This plan allows about 130 acres for such businesses to locate throughout the city.
~ NatiomJ 12v.Ccntcr lOr ChildIm and f=tilies
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APPLICATION FOR A SEXUALLY ORIENTED BUSINESS LICENSE
Year for which license is sought:
1.
Name of applicant:
2 .
Trade Name:
3 .
Mailing address:
Residence address:
Phone No.:
4. Address of business to be licensed:
5. Name of Manager:
Mailing Address:
Home Address:
city & State:
Date of Birth:
Name of person that the Fire Marshal, Chief Building Offi-
cial, zoning Enforcemen-t Off ice and Environmental
Health Departments can contact:
6. Please state whether the applicant is an individual, part-
nership, limited partnership, corporation, or limi-ted liabili-ty
company.
7. If applicant is an individual,
Name of applicant:
Address:
city & State:
Date of Birth
8. If applicant is a partnership or limited partnership, list
all partners or limited partners with an interest of 5% or more.
I
Partners:
Address:
city & State:
Date of Birth:
Percentage of Interest:
1
Limited Partners:
Address:
city & state:
Date of Birth:
percentage of Interest:
9. If applicant is a corporation, list all officers and direc-
tors with an interest of 5% or more.
Name
President:
% Interest
vice President:
% Interest
Treasurer
% Interest
Secretarv
% Interest
% Interest
% Interest
Home Address
Date of Birth
Date of Birth
Date of Birth
Date of Birth
Date of Birth
Date of Birth
10. If applicant is a Limited Liability Company, list all
members with an ownership interest of 5% or more.
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Name
Address
% Interest
Date of Birth
% Interest
Date of Birth
% Interest
Date of Birth
11. On the premises for which this application is made, do you
have or plan to have the following?
Yes No
A. An adult arcade
B. An adult bookstore/adult video store
C. An adult cabaret
D. An adult motel
E. An adult motion picture theater
F. An adult theater
12. A diagram must accompany this application which details the
following:
A. A configuration of the premises.
It B. The total floor space of the premises.
C. The use of each room and other areas of the premises.
D. The designation of rooms or other areas of the premis-
es.
E. The dimensions, to within six (6) inches, of all rooms
or other areas of the premises.
F. Location on the premises of where the license is to be
posted.
G. The location of all manager's stations having an unob-
structed view of the complete interior of each peep
booth.
13. Designation of Agent to Receive Process. If applicant is a
non-resident of the city of Aspen, please designate a person who
may be served any process notice or order.
Name:
Address:
Phone No.:
.
(The following affidavit to be signed and acknowledged by indi-
viduals, and each member of the partnerships, limited partner-
ships, or limited liability companies, or by every officer of the
corporation.)
3
STATE OF COLORADO
ss.
county of Pitkin
, the affiant, being first
duly sworn upon oath, deposes and says: if the applicant is an
individual, that the affiant is the applicant above named, or if
the applicant is a partnership, limited partnership, corporation,
or limited company; that the affiant has read the foregoing
application, the application is true and correct of affiant's own
knowledge and affiant agrees to conform to all requirements set
forth in Chapter 14.24 of the Municipal Code of the city of
Aspen, as amended.
Individuals, Partnerships, Limited Partnerships, officers of the
Corporation, and members of a Limited Liability Company must sign
here.
Subscribed and sworn to before me this
I 1996.
day of
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary Public
Address
FOR INTERNAL USE ONLY:
"
Fire Marshal
Building Department
Environmental Health Department Zoning Enforcement
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MANAGER'S REGISTRATION FORM
*This form must be completed for all Sexually Oriented Businesses
*separate applications for each manager
*Form must be submitted to and approved by Licensing Officer
Licensee:
Trade name of establishment:
Address of business:
City, state, Zip Code
Name of Manager:
Mailing address:
City, State, Zip Code:
Residence address:
city, State, zip Code:
Home Phone:
Business Phone:
OATH OF APPLICANT
I declare under penalty of perjury in the second degree that I
have read the foregoing registration, and that all information
contained herein is true, correct, and complete to the best of my
knowledge.
Signature of applicant
Date
STATE OF COLORADO
)
)
)
ss.
County of Pitkin
Subscribed and sworn to before me this
, 1996.
day of
WITNESS MY HAND AND OFFICIAL SEAL.
My commission expires:
Notary Public
Address
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Employee registration.
All employees must be registered within
5 days of employment.
Name
Address
Birthdate
Phone
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