HomeMy WebLinkAbout2000-12-6308ORDINANCE NO. 2000-12-6308
AN ORDINANCE PROVIDING FOR REGULATION OF
SEXUALLY ORIENTED BUSINESSES AND
EMPLOYEES
WHEREAS, the United States Court of Appeals for the Sixth
Circuit, in a decision titled Nightclubs, Inc. v. City of Paducah, 202 Fd. 3d 884
(6th Cir. 2000) concluded that the licensing scheme contained in Ordinance # 98-8-
5925, the City's previous ordinance regulating sexually oriented businesses was
unconstitutional; and
WHEREAS, the United States District Court for the Western District of
Kentucky has determined that the unconstitutional licensing provisions cannot be
severed from the remainder of Ordinance # 98-8-5925; and
WHEREAS, the Board of Commissioners desire to enact a new
ordinance addressing the constitutional concerns expressed by the Sixth Circuit
Court of Appeals; and
WHEREAS, this Ordinance will repeal and replace Ordinance No. 98-
8-5925; and
WHEREAS, the Board of Commissioners of the City of Paducah
r continues to be concerned about the secondary effects and impacts of sexually
oriented businesses such as adult amusement arcades, adult book stores, adult
cabarets, adult motels, adult motion picture theaters, adult stage theaters,
commercial sexual entertainment centers and escort agencies; and
WHEREAS, sexually oriented businesses require special supervision
in order to protect and preserve the health, safety and welfare of the patrons of such
businesses as well as the citizens of the City; and
WHEREAS, the Board of Commissioners find that sexually oriented
businesses are frequently used for unlawful sexual activities, including prostitution
and sexual liaisons of a casual nature; and
WHEREAS, the concern over sexually transmitted diseases is a
legitimate health concern of the City which demands regular regulation of sexually
oriented businesses in order to protect the health and well-being of the citizens; and
"✓ WHEREAS, there is convincing documented evidence that sexually
oriented businesses, because of their very nature, have a deleterious effect on both
the existing businesses around them and the surrounding residential areas adjacent
to them, causing increased crime and the down -grading of property values; and
WHEREAS, the Board of Commissioners desire to minimize and
control these adverse effects and thereby protect the health, safety and welfare of
the citizenry; protect the citizens from increased crime; preserve the quality of life;
preserve the property values and character of surrounding neighborhoods and deter
the spread of urban blight; and
WHEREAS, it is not the intent of this ordinance to suppress any
speech activities protected by the First Amendment, but to enact a content neutral
ordinance which addresses the secondary effects of sexually oriented businesses;
and
WHEREAS, it is not the intent of the Board of Commissioners to
condone or legitimize the distribution of obscene material, and the Board of
Commissioners recognizes that state and federal law prohibits the distribution of
obscene materials and expects and encourages state law enforcement officials to
enforce state obscenity statutes against any such illegal activities in the City.
BE IT ORDAINED BY THE CITY OF PADUCAH, KENTUCKY:
SECTION 1. PURPOSE AND FINDINGS
20-1(a). Purpose. It is the purpose of this ordinance to regulate
sexually oriented businesses in order to promote the health, safety, and general
welfare of the citizens of the city, and to establish reasonable and uniform
regulations relating to sexually oriented businesses. The provisions of this
ordinance have neither the purpose nor effect of imposing a limitation or restriction
on the content of any communicative materials, including sexually oriented materials.
Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by
adults to sexually oriented materials protected by the First Amendment, or to deny
access by the distributors and exhibitors of sexually oriented entertainment to their
intended market. Neither is it the intent nor effect of this ordinance to condone or
legitimize the distribution of obscene material.
20-1(b). Findings. Based on evidence concerning the adverse
secondary effects of adult uses on the community presented in reports made
available to the Board of Commissioners, and on findings incorporated in the cases
of City of Renton v. Play Time Theaters, Inc., 475 U.S. 41 (1986), Young vs.'
American Mini Theaters, 426 U.S. 50 (1976), and Barnes v. Glen Theater,
Inc., 501 U.S. 560 (1991), and on studies in other communities including, but not
limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis,
Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier,
California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma;
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Cleveland, Ohio; and Beaumont, Texas; and also on findings from the report of the
Attorney General's Working Group on the regulation of sexually oriented businesses,
(June 6, 1989, State of Minnesota), the Board of Commissioners finds:
1. Sexually oriented businesses lend themselves to ancillary unlawful
and unhealthy activities that are presently uncontrolled by the operators of the
establishments. Further, there is presently no mechanism to make the owners of
these establishments responsible for the activities that occur on their premises.
2. Certain employees of sexually oriented business defined in this
ordinance as adult theaters and cabarets engage in higher incidents of certain types
of illicit sexual behavior than employees of other establishments.
3. Sexual acts, including masturbation, and oral and anal sex, occur at
sexually oriented businesses, especially those which provide private or semi -private
booths or cubicals for viewing films, videos or live sex shows.
4. Offering and providing such space encourages such activities which
creates unhealthy conditions.
5. Persons frequent certain adult theaters, adult arcades, and other
sexually oriented businesses for the purpose of engaging in sex within the premises
of such sexually oriented businesses.
6. At least fifty (50) communicable diseases may be spread by activities
occurring in sexually oriented businesses, including but not limited to, syphilis,
gonorrhea, human immunodeficiency virus infection (HIV -AIDS), genital herpes,
hepatitis B, non-A, non-B amebiasis, salmonella infections, and shigella infections.
7. Since 1981 and to the present, there has been an increasing
cumulative number of reported cases of AIDS caused by the human
immunodeficiency virus (HIV) in the United States. Through December 31, 1997,
there have been 619,690 reported cases of AIDS in the United States.
8. As of December 31, 1997, there have been 2,583 reported cases of
AIDS in the Commonwealth of Kentucky.
9. The Surgeon General of the United States in his report of October 22,
1986, has advised the American public that AIDS and HIV infection may be
transmitted through sexual contact, intravenous drug abuse, exposure to infected
blood and blood components, and from an infected mother to her newborn.
10. According to the best scientific evidence, AIDS and HIV infection, as
well as syphilis and gonorrhea, are principally transmitted by sexual acts.
11. Sanitary conditions in some sexually oriented businesses are
unhealthy, in part, because the activities conducted there are unhealthy, and, in part,
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because of the unregulated nature of the activities and the failure of the owners and
operators of the facilities to self -regulate those activities and maintain those facilities.
Numerous studies and reports have determined that semen is found in
the areas of sexually oriented businesses where persons view adult oriented films.
12. The findings noted in paragraphs 1 through 12 raise substantial
governmental concerns.
13. Sexually oriented businesses have operational characteristics which
should be reasonably regulated in order to protect those substantial governmental
concerns.
14. Removal of doors on adult booths and requiring sufficient lighting on
premises with adult booths advances a substantial governmental interest in curbing
the illegal and unsanitary sexual activity occurring in adult theaters.
15. The general welfare, health and safety of the citizens of the city will be
promoted by the enactment of this ordinance.
SECTION II. DEFINITIONS
20-2. For purposes of this ordinance, certain terms and words are
defined as follows, unless the context clearly indicates or requires a different
meaning: 1
"Adult Amusement Arcade" means any place to which the public is
permitted or invited wherein coin operated, slug operated, or for any form of
consideration, electronically, electrically, or mechanically controlled still or motion
picture machines, projectors, video or laser disk players, or other image producing
devices are maintained to show images to five or fewer persons per machine at any
one time, and where the images so displayed are distinguished or characterized by
the depicting or describing of "specified sexual activities" or "specified anatomical
areas".
"Adult Book Store", "Adult Novelty Store", or "Adult Video Store",
means a commercial establishment which, as one of its principal purposes, offers for
sale or rental for any form of consideration any one or more of the following:
(a) Books, magazines, periodicals or other printed matter, -�
or photographs, films, motion pictures, video cassettes or video reproductions, slides
, or other visual representations which are characterized by the depiction or
description of "specified sexual activities" or "specified anatomical areas'; or
(b) Instruments, devices, or paraphernalia which are
designed for use in connection with "specified sexual activities".
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A commercial establishment may have other principal business
establishment which:
(a) Offers accommodations to the public for any form of
consideration; provides patrons with closed-circuit television transmissions, films,
motion pictures, video cassettes, slides, or other photographic reproductions which
are characterized by the depiction or description of "specified sexual activities" or
"specified anatomical areas"; and has a sign visible from the public right-of-way
which advertises the availability of this adult -type photographic reproductions; or
(b) Offers a sleeping room for rent for a period of time that
is less than ten (10) hours; or
(c) Allows a tenant or occupant of a sleeping room to sub-
rent the room for a period of time that is less than ten (10) hours.
"Adult Motion Theater" means a commercial establishment where, for
any form of consideration, films, motion pictures, video cassettes, slides, or similar
photographic reproductions are regularly shown which are characterized by the
dominant depiction or description of "specified sexual activities" or "specified
anatomical areas".
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purposes that do not involve the offering for sale or rental of material depicting or
describing "specified sexual activities" or "specified anatomical areas" and still be
characterized as "Adult Book Store", "Adult Novelty Store", or "Adult Video Store".
Such other business purposes will not serve to exempt such commercial
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establishments from being categorized as an "Adult Book Store", "Adult Novelty
Store", or "Adult Video Store" so long as one of its principal business purposes is the
offering for sale or rental for consideration the specified materials which are
characterized by the depiction or description of "specified sexual activities" or
"specified anatomical areas".
"Adult Cabaret" means a night club, bar, restaurant, or similar
commercial establishment which regularly features:
(a) Persons who appear in a state of nudity or semi-nude;
or
(b) Live performance which are characterized by the
exposure of "specified anatomical areas" or by "specified sexual activities"; or
(c) 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" means a hotel, motel, or similar commercial
establishment which:
(a) Offers accommodations to the public for any form of
consideration; provides patrons with closed-circuit television transmissions, films,
motion pictures, video cassettes, slides, or other photographic reproductions which
are characterized by the depiction or description of "specified sexual activities" or
"specified anatomical areas"; and has a sign visible from the public right-of-way
which advertises the availability of this adult -type photographic reproductions; or
(b) Offers a sleeping room for rent for a period of time that
is less than ten (10) hours; or
(c) Allows a tenant or occupant of a sleeping room to sub-
rent the room for a period of time that is less than ten (10) hours.
"Adult Motion Theater" means a commercial establishment where, for
any form of consideration, films, motion pictures, video cassettes, slides, or similar
photographic reproductions are regularly shown which are characterized by the
dominant depiction or description of "specified sexual activities" or "specified
anatomical areas".
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"Adult Stage Show Theater" means a theater, concert hall, auditorium,
or similar commercial establishment which regularly features persons who appear in
a state of nudity or semi-nude, or live performances which are characterized by the
exposure of "specified anatomical areas" or by "specified sexual activities".
"City" shall mean the City of Paducah, Kentucky.
"Employee" shall mean any person who performs any service on the
premises of a sexually oriented business on a full time, part time, or contract basis,
whether or not the person is denominated an employee, independent contractor,
agent or otherwise and whether or not said person is paid a salary, wage or other
compensation by the operator of said business. "Employee" does not include a
person exclusively on the premises for repair or maintenance of the premises or
equipment on the premises, or for the delivery of goods on the premises.
"Entertainer" means any person who provides sexually oriented
entertainment in a sexually oriented business whether or not an employee of the
business and whether or not a fee is charged or accepted for such entertainment. "
"Escort" means a person who, for consideration, agrees or offers to
act as a companion, guide, or date for another person, or who agrees or offers to
privately model lingerie or to privately perform a striptease for another person.
"Escort Agency" means a person or business association who
furnishes, offers to furnish, or advertises to furnish escorts as one of its primary
business purposes for a fee, tip, or other consideration.
"Establishment" means any sexually oriented business, whether
existing or opening of such business; the conversion of an existing business,
whether or not a sexually oriented business to any sexually oriented business; the
additions of any sexually oriented businesses to any other sexually oriented
business; or the relocation of any sexually oriented business.
"Nude", "Nudity" or a "state of nudity" means the showing of the
human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with
less than a fully opaque covering, the showing of the female breast with less than a
fully opaque covering of any part of the nipple, or the showing of the covered male
genitals in a discernibly turgid state.
"Operator" means any person who manages, directs,
administers, or is in charge of, the affairs and/or the conduct of a sexually oriented
business.
"Person" means an individual, proprietorship, partnership,
corporation, association, or other legal entity.
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"Semi-nude" or in a "semi-nude condition" means the showing
of the female breast below a horizontal line across the top of the areolae at its
highest point or the showing of the male or female buttocks. This definition shall
include the entire lower portion of the human female breast, but shall not include any
portion of the cleavage of the human female breast, exhibited by a dress, blouse,
skirt, leotard, bathing suit, or other wearing apparel provided the areola is not
exposed in whole or in part.
"Sexual Activities" shall mean depiction of human genitals in a
state of sexual stimulation, active human masturbation, sexual intercourse or
sodomy, holding or erotic touching of human genitals, pubic region, buttocks or
breasts.
"Sexual Encounter Center' means a business or commercial
enterprise that, as one of its principal business purposes, offers for any form of
consideration:
(a) Physical contact in the form of wrestling or tumbling
between persons of the opposite sex; or
(b) Activities between male and female persons and/or
persons of the same sex when one or more of the persons is in a state of nudity or
semi-nude.
"Sexually Oriented Business" means an adult amusement arcade,
adult book store, adult novelty store, adult video store, adult cabaret, adult motel,
adult motion picture theater, adult stage theater, escort agency, or sexual encounter
center.
"Specified Anatomical Areas" means:
(a) The human male genitals in a discernibly turgid state,
even if completely and opaquely covered; or
(b) Less than completely and opaquely covered human
genitals, pubic region, buttocks, or a female breast below a point immediately above
the tope of the areola.
r "Specified Sexual Activities" means any of the following:
(a) The fondling or other erotic touching of human genitals,
pubic region, buttocks, anus, or female breast;
(b) Sex acts, normal or perverted, actual or simulated,
including intercourse, oral copulation, masturbation, or sodomy; or
(c) Excretory functions as part of or in connection with any
of the activities set forth in (a) through (b) above.
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SECTION III. CLASSIFICATION
20-3. Sexually Oriented Businesses are classified as follows:
(a) Adult amusement arcades;
(b) Adult book stores, adult novelty stores, or adult video stores;
(c) Adult cabarets;
(d) Adult motels;
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(e) Adult motion picture theaters;
(f) Adult stage theaters;
(g) Escort agencies; and
(h) Sexual encounter centers;
SECTION IV. GENERAL RESTRICTIONS, REQUIREMENTS AND
CONDITIONS FOR SEXUALLY ORIENTED BUSINESSES
20-4. All sexually oriented businesses classified under Section III of
this ordinance shall comply with the following requirements:
(a) An establishment shall not exhibit any lettering, wording,
pictorial or representational matter which is distinguished or characterized by a
depiction of sexual activities on any sign subject to public view from outside the
establishment.
16. (b) An establishment shall not display its stock in trade, inventory,
or merchandise which depicts, describes or relates to sexual activities in such a
manner as to be subject to public view from outside the establishment.
17. (c) Except as otherwise provided by laws which may be more
restrictive, no owner, operator or employee of an establishment shall knowingly
permit a person under eighteen (18) years of age to be employed by or enter the
establishment.
18. (d) An establishment must have an employee on duty at all times
in which the business is open and must be positioned ata station in the premises
which is located in such a manner that the entrance can be monitored at all times.
Any person who reasonably appears to be under the age of eighteen (18) shall be
requested to verify his/her age. All persons under the age of eighteen (18)
discovered in the establishment shall be immediately escorted out of the premises.
19. (e) No establishment, except for an adult motel, shall remain open
at any time between the hours of one o'clock (1:00) a.m. and six o'clock (6:00) a.m.
20. (f) No act of sexual intercourse, sodomy, oral copulation,
masturbation, or sexual contact shall be permitted in or on the licensed premises of
any sexually oriented business, except an adult motel. No owner, operator, or
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employee of a sexually oriented business shall knowingly permit these activities to
occur on the licensed premises.
SECTION V. REGULATIONS PERTAINING TO EXHIBITION OF
SEXUALLY EXPLICIT FILMS, VIDEOS OR LIVE ENTERTAINMENT IN VIEWING
ROOMS.
20-5(a). A person who operates or causes to be operated a sexually
oriented business, other than an adult motel, which exhibits on the premises in a
viewing room of less than one hundred fifty (150) square feet of floor space, a film,
video cassette, live entertainment, or other video reproduction which depicts
"specified sexual activities" or "specified anatomical areas", shall comply with the
following requirements: Any wall or partition which is situated so as to create a
viewing area in which any amusement device or viewing screen is located shall be
constructed of not less than one hour fire -restrictive material and shall contain no
hole or other perforation.
The interior of the premises shall be configured in such a manner that
there shall be an unobstructed view from a manager's or cashier's station of every
area of the premises to which any patron is permitted access for any purpose
excluding restrooms. The view required in this section must be by direct line of sight
from the manager's or cashier's station.
No viewing room or booth shall be obstructed by any doors, curtains,
partitions, walls, merchandise, display racks or other materials. No patron shall be
permitted access to any area of the premises which has been designated as an area
to which patrons are not permitted.
No viewing room or booth shall be occupied by more than one person
at any time. No owner, operator, or employee shall knowingly permit any viewing
room or booth to be occupied by more than one person at any time.
All restrooms shall not contain any video reproduction devices or
equipment.
The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are permitted access at
an illumination of not less than ten (10) foot candles as measured at floor level.
The illumination described above shall be maintained at all times that
any patron or customer is present in the premises.
No owner, operator or employee shall allow openings of any kind to
exist between viewing rooms or booths.
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No person shall make or attempt to make an opening of any kind
between viewing booths or rooms.
The owner or operator shall, during each business day, cause the
walls between the viewing booths to be regularly inspected to determine if any
openings or holes exist.
All floor coverings in viewing rooms or booths shall be non -porous,
easily cleanable surfaces, with no rugs or carpeting.
There must be at least one employee on duty and situated at the
manager's station at -all times that any patron is present inside the premises.
20-5(b). All sexually oriented businesses in operation in the city shall
comply with the configuration requirements of section 20-5(a)(1)(2) upon the
effective date of this ordinance.
SECTION VI. INSPECTION
20-6. The owner or operator shall permit representatives of the City,
including representatives of the Police Department, to inspect the premises of a
sexually oriented business for the purpose of ensuring compliance with the law, at
any time it is occupied or open for business. Representatives of the City, including
representatives of the police department, shall be permitted access to any area in
which patrons are permitted.
SECTION VII. REGULATIONS PERTAINING TO LIVE
PERFORMANCES.
20-7(a). All live performances in any sexually oriented business shall
be on a designated performance area consisting of a stage or platform at least
eighteen (18) inches above the immediate floor level and removed at least six (6)
feet from any area in which any patrons are permitted.
20-7(b). No person shall appear nude or in a state of nudity while
engaged in any live performance on the premises of any sexually oriented business.
20-7(c) No person shall appear semi-nude or in a semi-nude
condition while engaged in any live performance on the premises of any sexually
oriented business except on the stage or platform described in section 20-7(a).
20-7(d) No entertainer or employee shall be permitted to have any
physical contact with any patron during any performance.
20-7(e). No entertainer or employee shall be visible from any public
place outside the premises during any performance.
SECTION VIII. RECORD KEEPING REQUIREMENTS.
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20-8. Each sexually oriented business shall maintain and retain for
a period of two (2) years beyond the last date of employment, the full name, date of
birth, last known address, date of termination, and social security number of all
persons employed by the sexually oriented business.
SECTION IX. SEVERABILITY.
1 20-9. If any section, subsection, or clause of this ordinance shall be
deemed to be unconstitutional or otherwise invalid, the validity of the remaining
sections, subsections, and clauses shall not be affected.
SECTION X. PENALTIES.
20-10. Any person who violates any provision of this ordinance
shall be guilty of a misdemeanor and subject to a fine of not less than one hundred
dollars ($100.00) and not more than five hundred dollars ($500.00), or be imprisoned
in the county jail for not more than twelve (12) months or both.
SECTION XI. REPEAL OF ORDINANCE # 98-8-5925.
20-11 Ordinance # 98-9-5925 is hereby repealed in its entirety and
replaced with this Ordinance.
SECTION XII. EFFECTIVE DATE.
20-12. This ordinance shall be read on two separate days and will
become effective upon publication pursuant to KRS Chapter 424.
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ATTEST:
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ASSISTANT CITY CLERK
Introduced by the Board of Commissioners December 19, 2000
Adopted by the Board of Commissioners December 27, 2000
Recorded by Assistant City Clerk December 27, 2000
Published by The Paducah Sun January 3, 2001
OrdWdultEntertainRev
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