HomeMy WebLinkAbout2008-11 an Ordinance Amending Title 4 of the Vail Town Code by the Addition of a New Chapter 12, entitled "Sexually Oriented Businesses" ORDINANCE NO. 11
SERIES 2008
AN ORDINANCE AMENDING TITLE 4 OF THE VAIL TOWN CODE BY THE
ADDITION OF A NEW CHAPTER 12, ENTITLED "SEXUALLY ORIENTED
BUSINESSES" ;AND SETTING FORTH DETAILS IN REGARD THERETO.
WHEREAS, the Town of Vail, in the County of Eagle and State of Colorado (the
"Town"), is a home rule municipal corporation duly organized and existing under laws of
the State of Colorado and the Town Charter (the "Charter"); and
WHEREAS, the members of the Town Council of the Town (the "Council") have
been duly elected and qualified; and
WHEREAS, the Council finds and determines that sexually oriented businesses
produce adverse secondary effects on the public health, safety and welfare; and
WHEREAS, such adverse secondary effects include increased rates of certain
crimes, including prostitution, robbery, assault, theft, loitering, pandering and public
intoxication, the spread of sexually transmitted diseases, the debasement of both men
and women, a decrease in property values for surrounding properties, and noise,
parking and traffic problems; and
WHEREAS, such adverse secondary effects occur most often in the areas
immediately surrounding such businesses; and
WHEREAS, the Council, in enacting this ordinance, expressly relies on the
findings of the 10t" Circuit Court of Appeals in Z.J. Gifts D-2, LLC v. City of Aurora, 136
F.3d 683 (10t" Cir. 1998), reversed on other grounds at 311 F.3d 1220 (10t" Cir. 2002),
reversed at 541 U.S. 774 (2004), and Essence, Inc. v. City of Federal Heights, 285 F.3d
1272 (10t" Cir. 2002), concerning the adverse secondary effects of sexually oriented
businesses on communities in Colorado and elsewhere; and
WHEREAS, the Council, in enacting this ordinance, expressly relies on the
findings of the United States Supreme Court in City of Los Angeles v. Alameda Books,
Inc., 535 U.S. 425 (2002), Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), and
Boos v. Barry, 485 U.S. 312 (1988), concerning the adverse secondary effects of
sexually oriented businesses on surrounding areas; and
WHEREAS, to reduce the adverse secondary effects caused by sexually
oriented businesses in the Town, the Council deems it appropriate and necessary to
adopt regulations for sexually oriented businesses.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF VAIL, COLORADO, THAT:
Ordinance No. 11, Series 2008 1
Section 1. Title 4 of the Vail Town Code is hereby amended by the addition of
anew Chapter 12, which shall read as follows:
CHAPTER 12
SEXUALLY ORIENTED BUSINESSES
4-12-1: PURPOSE:
The purpose of this Chapter is to promote and protect the public
health, safety and welfare by regulating sexually oriented businesses
through the establishment of reasonable and uniform regulations to
reduce the adverse secondary effects of sexually oriented businesses
within the Town. This Chapter is not intended to limit or restrict the
content of any communicative materials, including sexually oriented
materials. This Chapter is not intended to restrict or deny access by
adults to sexually oriented materials protected by the First Amendment of
the United States Constitution or Article II, § 10 of the Colorado
Constitution or to deny access of distributors or exhibitors of sexually
oriented entertainment to their intended market. Finally, this Chapter is
not intended to condone or legitimize the distribution of obscene material.
4-12-2: DEFINITIONS:
For purposes of this Chapter, the following terms shall have the
following meanings:
ADULT ARCADE: Any commercial establishment in which the
public is permitted or invited where, for any form of consideration, one (1)
or more motion picture projectors, slide projectors, image or virtual reality
producing machines or similar machines, for viewing by five (5) or fewer
persons per machine at any one time, are used regularly to show films,
motion pictures, video cassettes, slides, digital images, electronic
reproductions or photographs describing, simulating or depicting specified
sexual activities or specified anatomical areas.
ADULT STORE: Any commercial establishment which, as one of
its principal business purposes, offers for sale or rent for any form of
consideration one or more of the following: (1) books, magazines,
periodicals or other printed matter, or photographs, films, motion pictures,
video cassettes, slides, compact discs, digital video discs (DVDs), digital
images or other visual representations which are characterized by their
emphasis on the depiction or description of specified sexual activities or
specified anatomical areas; or (2) instruments, devices or paraphernalia
designed for use in connection with specified sexual activities.
ADULT CABARET: A nightclub, bar, restaurant or similar
commercial establishment which, for any form of consideration, regularly
features live performances which are characterized by the exposure of
Ordinance No. 11, Series 2008 2
specified anatomical areas or by the exhibition of specified sexual
activities.
ADULT MOTION PICTURE THEATER: A commercial
establishment which is characterized by the showing, for any form of
consideration, of films, motion pictures, video cassettes, slides, compact
discs, digital video discs (DVDs), digital images or other visual
representations that have an emphasis on depicting or describing
specified sexual activities or specified anatomical areas.
ADULT THEATER: A theater, auditorium or similar commercial
establishment which, for any form of consideration, regularly features live
performances which are characterized by an emphasis on exposure of
specified anatomical areas or specified sexual activities.
CONVICTED: Having been found guilty by a judge or a jury or
entering a guilty plea or a plea of nolo contendere, and includes deferred
judgments, deferred sentences, deferred adjudications and plea bargains,
whether or not an appeal of such conviction is pending; excluding any
conviction overturned or vacated by appeal or other force of law.
EMPLOYEE: A person who works or performs work or service in or
for a sexually oriented business on a full-time, part-time or contract basis,
with or without compensation, regardless of whether such person is
designated as an employee, independent contractor, agent, volunteer or
any other status; excluding any person on the premises for repair or
maintenance of the premises or for delivering or removing tangible
personal property to or from the premises.
LICENSED PREMISES: The building or structure in which a
licensed sexually oriented business is operating.
SEXUALLY ORIENTED BUSINESS: An adult arcade, adult store,
adult cabaret, adult motion picture theater or adult theater, except an
establishment where a medical practitioner, psychologist, psychiatrist or
similar professional licensed by the State of Colorado engages in
approved and recognized sexual therapy.
SPECIFIED ANATOMICAL AREAS means any of the following: (1)
human genitals, pubic region, buttocks, anus or female breasts below a
point immediately above the top of the areola, which are not completely
and opaquely covered; or (2) human male genitals in a discernibly turgid
state, even if completely and opaquely covered.
SPECIFIED CRIME: Any of the following crimes committed under
the penal or criminal code of any municipality, county, state or country:
sex crimes against children; sexual abuse; sexual assault; possession or
distribution of child pornography; distribution of an illegal controlled
Ordinance No. 11, Series 2008 3
substance; prostitution, promotion of prostitution or pandering; and
organized crime if such organized crime is committed within the premises
of a sexually oriented business in the Town or elsewhere.
SPECIFIED SEXUAL ACTIVITIES: Any of the following:
1. Fondling or other intentional touching of human
genitals, pubic region, buttocks, anus or female breasts;
2. Sex acts, normal or perverted, actual or simulated,
including intercourse, oral copulation and sodomy;
3. Masturbation, actual or simulated; or
4. Human genitals in a state of sexual stimulation or
arousal; human excretory functions as part of or in connection with
- any of the activities set forth in subsections 1, through 4. hereof.
4-12-3: LICENSE REQUIRED:
All sexually oriented businesses in the Town shall be licensed as
set forth in this Chapter, and it shall be unlawful for any person to operate
a sexually oriented business in the Town without a valid license issued
pursuant to this Chapter.
4-12-4: LICENSE APPLICATION:
A. Applicants for a sexually oriented business license shall
submit a written application to the Town Clerk which includes the
following:
1. The name, address, telephone number and date of
birth of the applicant and, if applicable, each of its officers, partners,
directors and registered agents;
2. The trade name of the applicant and copies of all
documents recording the trade name, including the trade name
affidavit;
3. The name of any other sexually oriented business in
which any officer, director or partner has a financial interest;
4. The address of the premises to be licensed;
5. If the applicant is a corporation, copies of the articles
of incorporation, bylaws and last annual report;
Ordinance No. 11, Series 2008 4
6. Copies of documents demonstrating that the applicant
has a legal right to possession of the premises to be licensed;
7. A sketch, drawing or diagram drawn to scale and
showing the configuration of the premises, including total floor area
to be occupied by each sexually oriented business; and
8. A description of the type of sexually oriented business
proposed, such as an adult store, adult cabaret, adult theater or
adult motion picture theater.
B. Each application shall be verified and acknowledged to be
true by the applicant or the managing partner, president or other officer
having the authority to sign for the applicant.
C. Each application shall be accompanies by anon-refundable
application fee in accordance with a fee schedule maintained by the Town
Clerk.
4-12-5: BACKGROUND INVESTIGATION:
A. Upon receipt of a completed application, the Town Clerk
shall perform a background investigation of the applicant and its officers,
directors and partners, and the information contained in the application.
B. The Town Clerk may to investigate any fact related to any of
the criteria set forth in this Chapter that may be relevant to determine the
eligibility of the applicant for a sexually oriented business license.
C. The Town Clerk may seek and obtain the assistance of law
enforcement agencies in conducting the background investigation.
D. The background investigation shall be completed within
forty-five (45) days of receipt of the completed application.
4-12-6: ISSUANCE OR DENIAL:
A. Within ten (10) days of the completion of the background
investigation, the Town Clerk shall either issue the sexually oriented
business license or issue a written statement of denial. The license or
statement of denial shall be sent via United States mail, postage prepaid,
to the applicant at the address provided on the application. The Town
Clerk shall issue the license unless one or more of the following is true:
1. The applicant has not paid all required fees.
2. The applicant or any of its officers, directors or
partners is under eighteen (18) years of age;
Ordinance No. 11, Series 2008 5
3. The applicant is not qualified to conduct business
under applicable state or federal law or Town ordinances;
4. The applicant has knowingly provided false
information to the Town on an application for a sexually oriented
business license;
5. The location of the proposed sexually oriented
business does not comply with the location requirements set forth in
the Town's zoning ordinance;
6. The premises in which the sexually oriented business
is proposed to be located does not comply with applicable Town
ordinances, such as the building code, electrical code or fire code;
7. The applicant is delinquent in the payment of any
taxes, fees, or other payments owed to the Town; or
8. The applicant or any of its directors, officers or
partners has been convicted of a specified crime in the two (2)
years preceding the date of the application.
B. Within ten (10) days of the date of a written statement of
denial, the applicant may submit a written request that the Town Clerk
schedule a hearing before the Town Council on the application. The
hearing shall be held at the next regularly scheduled Town Council
meeting occurring at least ten (10) days after receipt of the written
request.
C. At the hearing, the applicant may present additional
evidence, either documentary or through witness testimony, which is
relevant to the applicant's eligibility for a sexually oriented business
license.
D. At the conclusion of the hearing or within ten (10) days
thereafter, the Town Council shall either order that the Town Clerk issue
the sexually oriented business .license, or issue a written order denying the
application for the sexually oriented business license.
E. If the Town Council denies the application for a sexually
oriented business license, the Town Council's decision shall be final,
subject to judicial review pursuant to Rule 106(a)(4) of the Colorado Rules
of Civil Procedure.
Ordinance No. 11, Series 2008 6
4-12-7: TERM OF LICENSE; RENEWAL:
A. All sexually oriented business licenses issued under this
Chapter shall be valid for one year from the date of issuance, unless
revoked or suspended as provided in this Chapter.
B. Written application for renewal of a sexually oriented
business license shall be filed with the Town Clerk at least sixty (60) days
prior to the expiration of the current license, together with the applicable
annual license fee. If no application for renewal is timely filed, the
licensee has waived its option to renew the license and must re-apply for a
new license.
C. Applications for renewal shall include the same information
as an original application, except as the Town Clerk deems redundant.
D. The procedures for renewal license applications shall be the
same as the procedures for new license applications.
4-12-8: LICENSE NONTRANSFERABLE:
A sexually oriented business license issued under this Chapter is
nontransferable. By way of example but not limitation, a new sexually
oriented business license shall be required upon: the sale, lease or
sublease of the sexually oriented business or the licensed premises; the
transfer by sale, exchange or similar means of a controlling interest in the
sexually oriented business; or the establishment of a trust, gift, or similar
legal device which transfers ownership or control of the sexually oriented
business or the licensed premises, other than transfer by bequest or other
operation of law upon the death of the person possessing ownership or
control.
4-12-9: SUSPENSION AND REVOCATION:
A. The Town Clerk may suspend or revoke any sexually
oriented business license issued under this Chapter if the Town Clerk
receives reliable information to establish that:
1. A nuisance is being maintained on the licensed
premises;
2. The licensed premises are unsanitary as certified by
the Eagle County Department of Health;
3. The licensed premises are unsafe as certified by the
Town's building official, the fire marshal or the fire chief;
Ordinance No. 11, Series 2008 7
4. The licensee has knowingly permitted on the licensed
premises: the possession, sale or use of illegal controlled
substances; any specified sexual activity; or prostitution;
5. The licensee or any of its officers, directors, partners
or employees has been convicted of a specified crime during the
term of the license; or
6. The licensee knowingly provided false information on
an application for a sexually oriented business license or renewal of
such a license.
B. At least twenty (20) days before the Town Clerk suspends or
revokes any sexually oriented business license, the Town Clerk shall
provide written notice to the licensee, via United States mail, postage
prepaid, to the address provided on the most recent application, of the
allegations supporting the suspension or revocation.
C. During the twenty (20) day period, the licensee may file a
written request for a stay of the suspension or revocation pending a
hearing before the Town Council on the allegations to support the
suspension or revocation.
D. The hearing shall be held at the next regularly scheduled
Town Council meeting at least ten (10) days after receipt of the request.
E. At the hearing, the applicant may present additional
evidence, either documentary or through witness testimony, which is
relevant to the suspension or revocation.
F. At the conclusion of the hearing or within ten (10) days
thereafter, the Town Council shall order that the sexually oriented
business license be suspended for a period of time not to exceed one
hundred eighty (180) days, or that the license be revoked, or that no
action be taken with respect to the license.
G. If the Town Council orders suspension or revocation, the
Town Council's decision shall be final, subject to judicial review pursuant
to Rule 106(a)(4) of the Colorado Rules of Civil Procedure.
4-12-10: GENERAL REGULATIONS:
A. All licensed premises shall comply with all applicable Town
regulations and ordinances, including but not limited to the building code,
fire code, electrical code, zoning regulations, business licensing and sales
tax collection.
Ordinance No. 11, Series 2008 8
B. Every sexually oriented business license issued under this
Chapter shall be displayed in a conspicuous place on the licensed
premises in a clear cover or frame, and shall be available for inspection at
all times by the public.
C. All licensed premises shall be maintained in a clean and
sanitary condition, and shall be cleaned at least once daily and more
frequently when necessary.
D. Trash and garbage shall not be permitted to accumulate in
any licensed premises or on the property outside any licensed premises.
E. All materials, devices and novelties offered by a sexually
oriented business which depict specified sexual activities or specified
anatomical areas shall be displayed so that they cannot be seen by
anyone other than customers who have entered the licensed premises.
4-12-11: DANCE AND ENTERTAINMENT REQUIREMENTS:
A. An adult cabaret or adult theater at which employees dance
shall have one or more stages or similar structures specially designed for
dancing, which shall be constructed in accordance with applicable building
code regulations, and located inside the licensed premises. Employees
shall dance only upon such stage or structure.
B. When an employee dances on a structure which is designed
to hold not more than two (2) persons, the structure shall be level, of
sturdy construction and securely fastened to the floor or wall during dance
performances. Steps and handrails shall be required on all such stages
and structures where the platform on which the employee dances is more
than eight inches (8") above the surface upon which the structure rests.
C. Any adult cabaret or adult theatre 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, and the
stage shall be fixed and immovable.
D. No seating for the audience shall be permitted within three
feet (3') of the edge of any stage, and no members of the audience shall
be permitted upon any stage or within three feet (3') of the edge of any
stage.
4-12-11: LIGHTING REQUIREMENTS:
A. When the occupant capacity of any licensed premises, as
determined by the fire department, is at least fifty persons, such licensed
Ordinance No. 11, Series 2008 9
premises shall have electric, battery-operated emergency lights using
reliable storage batteries properly maintained and charged.
B. The interior portion of a licensed premise to which patrons
are permitted access shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place at an illumination of not less
than two (2) foot-candles as measured at the floor level. 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.
4-12-12: HOURS OF OPERATION:
It is 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 on any Monday through Saturday
between 2:00 a.m. and 7:00 a.m.; and on any Sunday between 2:00 a.m.
and 8:00 a.m.
4-12-13: AGE RESTRICTIONS:
A. It is unlawful for a licensee to admit or permit the admission
of any person less than eighteen (18) years of age into any sexually
oriented business.
B. It is unlawful for any person to sell, barter, give, or offer for
sale, barter or gift, to any person under eighteen (18) years of age any
service, material, device or thing sold or offered for sale by any adult store
or adult motion picture theater.
C. Employees of any sexually oriented business shall be at
least eighteen (18) years of age.
4-12-14: CONDUCT:
A. No licensee or employee shall encourage or knowingly
permit any person on or within the licensed premises to touch, caress or
fondle the genitals, pubic region, buttocks, anus or breasts of any person.
B. No licensee or employee shall knowingly fail to immediately
report to the police department any criminal conduct or violation of any
Town ordinance or state or federal law, rule or regulation that occurs on or
within the licensed premises.
C. No person shall engage in specified sexual activities on or
within a licensed premise.
Ordinance No. 11, Series 2008 1 ~
D. No licensee or employee mingling with 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.
E. No employee shall receive tips from patrons except as
provided herein. 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 employees shall be placed by patrons into the tip box. The
licensee shall post one or more signs to be conspicuously visible to
patrons in letters at least one inch (1") 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."
4-12-15: INSPECTION:
Every licensee shall permit law enforcement officers and any other
federal, state, county or Town agency in the performance of any function
connected with the enforcement of this Chapter and normally and
regularly conducted by such agency, to inspect the licensed premises for
the purpose of ensuring compliance with this Chapter, at any time the
licensed premises is occupied or open for business.
4-12-16: EMPLOYEE IDENTIFICATION:
Each licensee shall provide to the Town Clerk, in writing, the full
name, any aliases, date of birth, and the current address and telephone
number of every employee of the licensee within five (5) days of
employment.
4-12-17: EXEMPTIONS:
Notwithstanding anything to the contrary in this Chapter, the
following businesses and activities shall be exempt from the requirements
of this Chapter:
1. Any adult store which derives less than ten percent
(10%) of its gross income from the sale of materials depicting
specified sexual activities or specified anatomical areas, if such
materials are located in a separate room or booth containing those
materials only.
2. Any college, junior college or university supported, in
whole or in part, by tax revenue and offering educational programs
which, for educational purposes, may include the depiction of
specified sexual activities or specified anatomical areas.
Ordinance No. 11, Series 2008 11
4-12-18: REGULATIONS NOT EXCLUSIVE:
Nothing contained in this Chapter shall limit the effectiveness or
applicability of any other provision of this Code to any sexually oriented
business.
4-12-19: PENALTIES:
A. It shall be unlawful for any person, corporation or other entity
to violate any provision of this Chapter, and any such violation shall be
subject to a fine not to exceed nine hundred ninety-nine dollars ($999.00)
and imprisonment for a period not to exceed one hundred eighty (180)
days, or both such fine and imprisonment, provided that no person under
the age of eighteen (18) years of age shall be subject to imprisonment.
Each and every day of violation of the provisions of this Chapter shall
constitute a separate offense punishable as such.
B. In the event of violation of any of the terms and regulations
set forth herein, the Town may obtain equitable relief, including injunctive
relief, to require compliance with the provisions hereof. If the Town is
successful in obtaining injunctive or other equitable relief, the costs and
attorney fees incurred by the Town in such action shall be awarded to the
Town in addition to any other relief.
C. Nothing contained herein shall preclude the Town from
enforcing the suspension and revocation provisions of this Chapter in
addition to simultaneously or subsequently prosecuting alleged violations
of this Chapter under this Section.
Section 2. If any part, section, subsection, sentence, clause or phrase of this
ordinance is for any reason held to be invalid, such decision shall not effect the validity
of the remaining portions of this ordinance; and the Town Council hereby declares it
would have passed this ordinance, and each part, section, subsection, sentence, clause
or phrase thereof, regardless of the fact that any one or more parts, sections,
subsections, sentences, clauses or phrases be declared invalid.
Section 3. The Town Council hereby finds, determines and declares that this
ordinance is necessary and proper for the health, safety and welfare of the Town of Vail
and the inhabitants thereof.
Section 4. The amendment of any provision of the Town Code as provided in
this ordinance shall not affect any right which has accrued, any duty imposed, any
violation that occurred prior to the effective date hereof, any prosecution commenced,
nor any other action or proceeding as commenced under or by virtue of the provision
amended. The amendment of any provision hereby shall not revive any provision or
any ordinance previously repealed or superseded unless expressly stated herein.
Ordinance No. 11, Series 2008 12
Section 5. All bylaws, orders, resolutions and ordinances, or parts thereof,
inconsistent herewith are repealed to the extent only of such inconsistency. This
repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or
part thereof, theretofore repealed.
INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED
PUBLISHED ONCE IN FULL ON FIRST READING this 6th day of May, 2008 and a
public hearing for second reading of this Ordinance set for the 20th day of May, 2008, in
the Council Chambers of the Vail Municipal Building, Vail, Colora
c, -
Richard Cle an , Towri Mayo
Attest: ``?a'N
LO •,~••y~i~~
• •
: SEAS,,
ore~i Donaldson, Town Clerk ~
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READ AND APPROVED ON SECOND R D ORDERED P HED
this 20th day of May, 2008.
.
Richard Cleveland, Town Mayor
Attest:
Lorelei Donaldson, Town Clerk ,~d~'
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•COLOK~'
Ordinance No. 11, Series 2008 13