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HomeMy WebLinkAboutordinance.council.018-96 ." 4J . .- 11-- - ....... 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 e e e - 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 2 - 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 e e 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 3 e .. . e 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 4 --. -....- IUllnlllll e 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. e 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. 5 e e 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. 6 e e I 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: 7 e e - 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 8 e 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 9 e e e 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. 10 e - 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 11 . e 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). 12 4ft e 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. 13 e e 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. 14 4ft e It 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 15 e e e .- _1lII 11_. 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 16 It e 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. 17 e e 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. 18 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. e 19 . e 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. " 20 e e e 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. 21 .- e 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. 22 e e e . . 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: 23 e e e .._ .................."""""'""''''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, e e e - ---~~~~~~-~- 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 e e 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 .. .. - __B_'~ 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. e 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. 4 "__11II_11II _~~~__R 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. e 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. 5 II .. ....- -- 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. e 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 e 6 e e 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 e 8 e e e I_I - ~'SRiIII 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 9 D i~'~A ~~- i : LL I ' _LL--------J Del _J ,', " " " d " " o " - ~ = U ~ < Z o :< 11- :::;.' ----.. -----j~I- 1~lnl City I I H a I I ~J I~___._ i -I ~-----~I I r I I I ' ~ .- -- -: L-___--=-----==~ -I i---DlIWhOOI" Op" ',' ., , J H 0 U II e and ! I V i II I tor C e n I 0 I ' =.)) .---/ ~ u ~ < v .---- l E GE ND I I _.~J ~='"''"'<~-... ,el,1 co,,-l Com p, y or PDrklng wi t nth I 11 1I r 0" -, " " I g n I-I F' , C8rpool I HOV 1I r kin 9 wi I I Y po r m coo , I I ~:.=-=-=-."==--'-:~=:=:J. , I ! 1 I AV ~ v z ~ ~ ----- --' HYMAN A Vl -' '" I - p , , p , I , I J HOPKIN ~ I MAIN r AVE I I R.IS I A ! :~ ,~ l~ .~ r- -, I ,-- ! i I ' ,- - ------ 1---- t: , I I i . -- ~-' :3 < z ST ,-----.,~ --c.J IT! '~--....----------' MAIN ST ~ v z ,~ ,~ z I I&- .:______G CJ = E , o y, p, o , " , G, g l-'. ., z K ST j ,j r.--H------ r~-.--------.:J > " /~-~ I --------- , ~ '-- R 0 G -------... ---------- p r B n d 0 "'-- r kin g ------------.---- Palo r F BCffK~ER '. -sr c~,\\D~.H '-'./-~ ---....,-. G 4ft 4ft e 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 e 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. e ~ 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 e 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. e ~ National u",Ccnrcr for Childrm and f=ilics - . . .11II BIlIBlllll e 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. e 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. e 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). e ~ 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 e 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 e 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 - e 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 e e 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 e e --- .........."'._~~.....- 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 e e 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 e - 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 - e . 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 It e . 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. 2 e . .'''' ,', .-. __M-- 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 4 e.,. o ! - ~~ . e . . - - 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 5 -- . ...--... I L------.- Employee registration. All employees must be registered within 5 days of employment. Name Address Birthdate Phone 6 e; . .-- -