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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 ~ •ti .f 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~' 'O '~O •COLOK~' Ordinance No. 11, Series 2008 13