HomeMy Public PortalAbout050-2006 - Adult Business EntertainmentORDINANCE NO. 50-2006
A GENERAL ORDINANCE CREATING A SECTION OF THE CITY OF
RICHMOND CODE REGARDING SEXUALLY ORIENTED BUSINESSES
WHEREAS, sexually oriented businesses require special supervision from the public
safety agencies of the City of Richmond in order to protect and preserve the health,
safety, morals, and welfare of the patrons of such businesses as well as the citizens of the
City of Richmond; and
WHEREAS, the Common Council finds 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 of Richmond which demands reasonable regulation of sexually oriented
businesses in order to protect the health and well-being of the citizens; and
WHEREAS, licensing is a legitimate and reasonable means of accountability to ensure
that operators of sexually oriented businesses comply with reasonable regulations and to
ensure that operators do not knowingly allow their establishments to be used as places of
illegal sexual activity or solicitation; 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 downgrading of property values; and
WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have
serious objectionable operational characteristics, particularly when they are located in
close proximity to each other, thereby contributing to urban blight and downgrading the
quality of life in the adjacent area; and
WHEREAS, the Common Council desires 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, the Common Council has determined that location criteria alone do not
adequately protect the health, safety, and general welfare of the people of the City of
Richmond; 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
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WHEREAS, it is not the intent of the Common Council to condone or legitimize the
distribution of obscene material, but Council 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 of Richmond.
NOW, THEREFORE, BE IT ORDAINED by the Common Council of the City of
Richmond finds the following:
(a) It is the purpose of this Ordinance to regulate Sexually Oriented Businesses and
related activities, in order to promote the health, safety, morals, and general welfare of
the citizens of the City of Richmond ("Richmond"), and to establish reasonable and
uniform regulations to prevent the deleterious effects of Sexually Oriented Businesses
within Richmond. 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 neither 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. Further, it is neither the intent nor effect
of this Ordinance to condone or legitimize the distribution of obscene materials. It is
neither the intent nor effect of this ordinance to limit or restrict the lawful activities
permitted under Indiana Code.
(b) Based on evidence concerning the adverse secondary effects of Sexually Oriented
Businesses on the Richmond community presented in hearings and in reports made
available to the Council, and on findings incorporated in court cases. The Council 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) Sexual acts, including masturbation, and oral and anal sex, occur at
Sexually Oriented Businesses, especially those which provide private or semi-
private booths or cubicles for viewing films, videos, or live sex shows;
(3) Offering and providing such space encourages such activities, which
creates unhealthy conditions;
(4) 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;
(5) At least 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,
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hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella
infections;
(6) Sexually Oriented Businesses have operational characteristics which
should be reasonably regulated in order to protect those substantial governmental
concerns; and
(7) A reasonable licensing procedure is an appropriate mechanism to place the
burden of that reasonable regulation on the owners and the operators of the
Sexually Oriented Businesses. Further, such a licensing procedure will place an
incentive on the operators to see that the Sexually Oriented Business is run in a
manner consistent with the health, safety, and welfare of its patrons and
employees, as well as the citizens of the Richmond. It is appropriate to require
reasonable assurances that the licensee is the actual operator of the Sexually
Oriented Business, fully in possession and control of the premises and activities
occurring therein.
(8) Requiring licensees of Sexually Oriented Businesses to keep information
regarding current employees and certain past employees will help reduce the
incidence of certain types of criminal behavior by facilitating the identification of
potential witnesses or suspects and by preventing minors from working in such
establishments.
(9) The general welfare, health, morals, and safety of the citizens of the
Richmond will be promoted by the enactment of this Ordinance.
BE IT FURTHER ORDAINED, by the Common Council of the Richmond that this
proposed section of the Richmond Code be created as follows:
CHAPTER 126: SEXUALLY ORIENTED BUSINESSES
SECTION
126.01
Definitions.
126.02
Classification.
126.03
License Required.
126.04
Issuance of License.
126.05
License Fee.
126.06
Inspection.
126.07
Expiration of License.
126.08
Suspension.
126.09
Revocation.
126.10
Hearing; License Denial, Suspension, Revocation; Appeal.
126.11
Transfer of License.
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126.12
Regulations.
126.13
Obscenity.
126.14
Additional Regulations Concerning Public Nudity.
126.15
Exemptions.
126.16
Penalty.
126.17
Severability.
126.18
Conflicting Ordinances
Sec.126.01 Definitions.
For the purpose of this chapter the following definitions shall apply unless the context
clearly indicates or requires a different meaning.
(a) Adult arcade, as used in this chapter, means and includes:
(1) Any building or structure which contains or is used for commercial
entertainment where the patron directly or indirectly is charged a fee to view from
an enclosed or screened area or booth a series of live dance routines, strip
performances or other gyrational choreography, which performances are
distinguished or characterized by an emphasis on specified sexual activities or by
exposure of specified anatomical areas; or
(2) Any place to which the public is permitted or invited wherein coin 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 any one (1) time, and
where the images so displayed are distinguished or characterized by an emphasis
on matter depicting or describing specified sexual activities or specified
anatomical areas.
(b) Adult bookstore, Adult Novelty Store or Adult Video Store means an establishment
having at least twenty-five percent (25%) of its retail floor space used for the display of
adult products; or stock in trade consisting of adult products; or weekly revenue derived
from adult products, for any form of consideration, of any one or more of the following:
(1) Books, magazines, periodicals or other printed matter, or photographs,
films, motion pictures, video cassettes, digital video discs, compact discs, slides,
or other visual representations, which are characterized by their emphasis upon
the exhibition or display of "specified sexual activities" or "specified anatomical
areas;"
(2) Instruments, devices, or paraphernalia which are designed for use or
marketed primarily for stimulation of human genital organs or for
sadomasochistic use or abuse of the user or others.
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(c) Adult Cabaret means a nightclub, bar, restaurant, or similar commercial
establishment, whether or not alcoholic beverages are served, which regularly features:
(1) Persons who appear nude or semi-nude;
(2) Live performances which are characterized by the exposure of "specified
anatomical areas" or by "specified sexual activities;" or
(3) Films, motion pictures, video cassettes, slides or other photographic
reproductions which are characterized by the exhibition or display of "specified
sexual activities" or "specified anatomical areas."
(d) Sexually Oriented Business means an adult arcade, adult bookstore, adult novelty
store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult
theater, escort agency, semi-nude model studio, or sexual encounter center.
(e) AdultMotel means a hotel, motel, or similar commercial establishment, which:
(1) 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 exhibition or display 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 of photographic reproductions;
and either
(2) Offers a sleeping room for rent for a period of time that is less than ten
(10) hours; or
(3) Allows a tenant or occupant of a sleeping room to subrent the room for a
period of time that is less than ten (10) hours.
(f) Adult Motion Picture Theater, as used in this chapter, means and includes:
(1) An enclosed building with a capacity of more than five (5) but less than
fifty (50) persons, used for presenting films, motion pictures, video cassettes,
slides or similar photographic reproductions in which a preponderance of the total
presentation time is devoted to the showing of materials which are distinguished
or characterized by an emphasis on matter depicting, describing, or relating to
specified sexual activities or specified anatomical areas for observation by patrons
therein; or
(2) An enclosed building with a capacity of fifty (50) or more persons used
for presenting films, motion pictures, video cassettes, slides or similar
photographic reproductions in which a preponderance of the total presentation
time is devoted to showing of materials which are distinguished or characterized
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by an emphasis on matter depicting, describing or relating to specified sexual
activities or specified anatomical areas for observation by patrons therein.
(g) Adult Theater, as used in this chapter, means and includes:
(1) 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"; or
(2) An open lot or part thereof, with appurtenant facilities, devoted primarily
to the presentation of motion pictures, films, theatrical productions, and other
forms of visual productions, for any form of consideration, to persons in motor
vehicles or on outdoor seats in which a preponderance of the total presentation
time is devoted to the showing of materials distinguished or characterized by an
emphasis on matter depicting, describing or relating to specified sexual activities
or specified anatomical areas for observation by patrons.
(h) Distinguished or Characterized by an Emphasis Upon means the dominant or
principal theme of the object referenced. For instance, when the phrase refers to films
"which are distinguished or characterized by an emphasis upon the exhibition or display
of specified sexual activities or specified anatomical areas," the films so described are
those whose dominant or principal character and theme are the exhibition or display of
"specified anatomical areas" or "specified sexual activities."
(i) Employee, Employ, and Employment describe and pertain to any person who
performs any service on the premises of a Sexually Oriented Business on a full-time,
part-time, or contract basis, regardless of whether the person is denominated as an
employee, independent contractor, agent, or by another status. Employee does not include
a person exclusively on the premises for repair or maintenance of the premises, or for the
delivery of goods to the premises.
0) Enforcement Officer shall mean the Department of Metropolitan Development or
such person as may be designated by the Director of the Department of Metropolitan
Development.
(k) Escort means a person who, for consideration, and for another person, agrees or
offers:
(1) To act as a companion, guide, or date;
(2) To privately model lingerie; or
(3) To privately perform strip shows or other gyrational choreography, which
performances are distinguished or characterized by an emphasis on specified
sexual activities or by exposure of specified anatomical areas.
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(1) Escort Agency means a person or business association that for a fee, tip, or other
consideration, furnishes, offers to furnish, or advertises to furnish, escorts as one of its
primary business purposes.
(m) Establish or Establishment means and includes any of the following:
(1) The opening or commencement of any Sexually Oriented Business as a
new business;
(2) The conversion of an existing business, whether or not a Sexually
Oriented Business, to any Sexually Oriented Business;
(3) The addition of any Sexually Oriented Business to any other existing
Sexually Oriented Business; or
(4) The relocation of any Sexually Oriented Business.
(n) Licensee means a person in whose name a license to operate a Sexually Oriented
Business has been issued, as well as the individual listed as an applicant on the
application for a license; and in the case of an employee, a person in whose name a
license has been issued authorizing employment in a Sexually Oriented Business.
(o) Nude, Nudity or a State of Nudity means the showing of the human male or female
genitals, pubic area, vulva, anus, or anal cleft 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.
(p) Operate or Cause to Be Operated means to cause to function or to put or keep in
a state of doing business. Operator means any person on the premises of a Sexually
Oriented Business who is authorized to exercise operational control of the business, or
who causes to function or who puts or keeps in operation, the business. A person may be
found to be operating or causing to be operated a Sexually Oriented Business regardless
of whether that person is an owner, part owner, or licensee of the business.
(q) Person means an individual, proprietorship, partnership, corporation, association,
or other legal entity.
(r) Regularly Features or Regularly Shown means a consistent or substantial course
of conduct, such that the films or performances exhibited constitute a substantial portion
of the films or performances offered as a part of the ongoing business of the Sexually
Oriented Business.
(s) Semi-nude or in a Semi-nude Condition means the showing of the female breast
below a horizontal line across the top of the areola at its highest point or the showing of
the male or female buttocks. This definition shall include the entire lower portion of the
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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.
(t) Semi-nude Model Studio means a commercial establishment which regularly
features a person (or persons) who appears semi-nude and is provided to be observed,
sketched, drawn, painted, sculptured, or photographed by other persons who pay money
or any form of consideration, but shall not include a proprietary school licensed by the
State of Indiana or a college, junior college or university supported entirely or in part by
public taxation; a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior college, or university
supported entirely or partly by taxation.
(u) Sexual Encounter Center means a business or commercial establishment that as
one of its principal business purposes, offers for any form of consideration, a place where
two or more persons may congregate, associate, or consort for the purpose of "specified
sexual activities." The definition of sexual encounter establishment or any Sexually
Oriented Businesses shall not include an establishment where a medical practitioner,
psychologist, psychiatrist, or similar professional person licensed by the state engages in
medically approved and recognized sexual therapy.
(v) Specified Anatomical Areas means:
(1) The human male genitals in a discernibly turgid state, even if completely
and opaquely covered; or
(2) Less than completely and opaquely covered human genitals, pubic region,
buttocks, or a female breast below a point immediately above the top of the
areola.
(w) Specified Sexual Activities means any of the following:
(1) Human genitals in a state of sexual stimulation or arousal;
(2) Acts of human masturbation, sexual intercourse or sodomy;
(3) Fondling or other erotic touching of human genitals, pubic regions,
buttocks or female breasts;
(4) Masochism, erotic or sexually oriented torture, beating or the infliction
(5) Flagellation or torture in the context of a sexual relationship; of pain;
(6) Erotic touching, fondling or other such contact with an animal by a human
being; or
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(7) Human excretion, urination, menstruation, vaginal or anal irrigation as
part of or in connection with any of the activities set forth in (1) through (6)
above.
(x) Substantial Enlargement of a Sexually Oriented Business means the increase in
floor areas occupied by the business by more than twenty-five (25) percent, as the floor
areas exist on the date this Ordinance takes effect.
(y) Transfer of Ownership or Control of a Sexually Oriented Business means and
includes any of the following:
(1) The sale, lease, or sublease of the business;
(2) The transfer of securities which constitute a controlling interest in the
business, whether by sale, exchange, or similar means; or
(3) The establishment of a trust, gift, or other similar legal device which
transfers the ownership or control of the business, except for transfer by bequest
or other operation of law upon the death of the person possessing the ownership
or control.
Sec.126.02 Classification.
Sexually Oriented Businesses are classified as follows:
(1) adult arcades;
(2) adult bookstores, adult novelty stores, or adult video stores;
(3) adult cabarets;
(4) adult motels;
(5) adult motion picture theaters;
(6) adult theaters;
(7) escort agencies;
(8) semi-nude model studios; and
(9) sexual encounter centers.
Sec. 126.03 License Required.
(a) It is unlawful for any person to operate a Sexually Oriented Business without a
valid Sexually Oriented Business license issued by the City Clerk's office pursuant to this
Ordinance.
(b) An application for a license must be made on a form provided by the City Clerk.
All applicants must be qualified according to the provisions of this Ordinance.
(c) An application shall be considered complete if it includes the information
required in this Section. All premises requirements outlined in this Section must be
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inspected by the Enforcement Officer and a recommendation of approval or denial of
application forwarded to the City Clerk within forty-five (45) days from the time the
application is filed. The applicant shall be qualified according to the provisions of this
Ordinance. All applications for licenses shall be made to the City Clerk. The application
for a license required by this article shall include the information called for in
Subsections (1) through (12), as follows:
(1) The full true name and any other names used in the preceding five (5)
years.
(2) The name, business location, legal description, business mailing address,
and phone number of the proposed Sexually Oriented Business;
(3) Telephone number of the applicant;
(4) The applicant's citizenship;
(5) The state of incorporation (where applicable); the names of partners or
corporate officers (where applicable);
(6) The registered agent name, registered agent's address, and the principal
office of the corporation (where applicable);
(7) The length of time the business has been in Richmond;
(8) Any previous location or location change of the business within two (2)
years.
(9) The issuing jurisdiction and the effective dates of any license or permit
held by the applicant relating to a Sexually Oriented Business, and
whether any such license or permit has been denied, revoked, or
suspended, and if so, the reason or reasons wherein.
(10) Whether all county and state taxes have been paid;
(11) The seating capacity of the establishment; and
(12) The number of business locations, stages, motion picture or video screens,
closed circuit televisions and motion picture or video screens, projectors
or other image -producing devices.
(d) The application shall be accompanied by a sketch or diagram showing the
configuration of the premises, including a statement of total floor space occupied by the
business. The sketch or diagram need not be professionally prepared, but shall 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 (6) inches.
(e) The application shall be accompanied by a site plan prepared by a land surveyor
who is licensed by the State of Indiana. The site plan shall show all the relevant features
of the proposed Sexually Oriented Business premises and the surrounding area,
including, but not limited to: (a) the current zoning districts of all property within 1000
feet of the property to be licensed; (b) the property lines of any established park, school,
or place of worship as described in 126.12(d)(8); (c) the property lines of any residence
within 1000 feet of the property to be licensed; and (d) the property lines of any
established Sexually Oriented Business within 500 feet of the property to be licensed.
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(f) The application shall be notarized. If the person who wishes to operate a Sexually
Oriented Business is an individual, he or she shall sign the application for a license as
applicant. If the person that wishes to operate a Sexually Oriented Business is other than
an individual (such as a corporation), each officer, director, general partner, or other
person who will participate directly in decisions relating to management of the business
shall sign the application for a license as the applicant. Each applicant must be qualified
under Section 126.04, and each applicant shall be considered as a licensee if a license is
granted.
(g) A person who possesses a valid business license is not exempt from the
requirement of obtaining any required Sexually Oriented Business license. A person who
operates a Sexually Oriented Business and possesses a business license shall comply with
the requirements and provisions of this Ordinance, where applicable.
(h) The information provided by an applicant in connection with the application for a
license under this Ordinance shall be maintained by the City Clerk on a confidential
basis, and may be disclosed only: (a) to other governmental agencies in connection with a
law enforcement or public safety function, or (b) as may otherwise be required by law or
a court order.
(i) The information provided in the license application shall be supplemented in
writing by certified mail, return receipt requested, to the City Clerk within ten (10)
working days of a change of circumstances which would render the information
originally submitted false or incomplete.
Sec. 126.04 Issuance of License.
(a) Upon the filing of a completed application for a Sexually Oriented Business
license, the City Clerk shall issue a Temporary License to the applicant, which
Temporary License shall expire upon the final decision of the City Clerk to deny or grant
the license. Within forty-five (45) days after the receipt of a completed application, the
City Clerk shall either issue a license or issue a written notice of denial to the applicant. If
the City Clerk fails to act by either granting or denying the license within forty-five (45)
days, the license shall be granted by operation of law. If the City Clerk denies the request
to issue a license, the City Clerk shall issue a conditional license to operate if a timely
petition for judicial review is filed within ten (10) days of receipt of notice of the
Richmond's decision. Such a conditional license shall operate in all respects as a license
until judicial review is completed by a trial court of competent jurisdiction. A
conditional license shall not permit the applicant to operate in violation of any zoning
requirement set forth in Title XV, Chapter 154 of the City of Richmond Code.
(b) The City Clerk shall approve the issuance of a license unless one or more of the
following is found to be true:
(1) An applicant is less than eighteen (18) years of age;
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(2) An applicant is delinquent in the payment to Richmond of taxes, fees,
fines, or penalties assessed against or imposed upon the applicant in relation to a
Sexually Oriented Business;
(3) An applicant has failed to provide information as required by SECTION
126.03 regarding application requirements;
(4) The license application fee required by this Ordinance has not been paid;
(5) An applicant has falsely answered a question or request for information on
the application form;
(6) The proposed Sexually Oriented Business is located in a zoning district
other than a district in which Sexually Oriented Businesses are allowed to operate
under Title XV, Chapter 154 of the City of Richmond Code, or is not in
compliance with the location restrictions established for Sexually Oriented
Businesses in the appropriate zoning district(s).
(c) The license, if granted, shall state on its face the name of the person or persons to
whom it is granted, the number of the license issued to that applicant, the expiration date,
and, the name and address of the 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.
Sec. 126.05 License Fee.
Every sexually oriented business that is granted a license (initial or renewal) shall pay to
the city an annual non-refundable license fee of $500.00, currently this is the amount
determined to be sufficient to pay the cost of administration and enforcement of this
section The annual license fee shall be due for any existing Sexually Oriented Business
within sixty (60) days of passage of this ordinance.
Sec. 126.06 Inspection.
(a) For the purpose of ensuring compliance with this Ordinance, an applicant,
operator or licensee shall permit representatives of the City of Richmond and any other
federal, state, county or city agents in the performance of any function connected with the
enforcement of this Ordinance, normally and regularly conducted by such agencies, to
inspect, at any time, the business is occupied or open for business, those portions of the
premises of a Sexually Oriented Business which patrons or customers are permitted to
occupy.
(b) The provisions of this Section do not apply to areas of an adult motel which are
currently being rented by a customer for use as a permanent or temporary habitation.
Sec. 126.07 Expiration of License
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(a) Each license shall expire on December 31" and may be renewed only by making
application as provided in SECTION 3. An application for renewal shall be made at least
sixty (60) days before the expiration date.
(b) When Richmond denies renewal of a license, the applicant shall not be issued a
license for one year period.
Sec.126.08 Suspension.
Richmond shall issue a written intent to suspend a license for a period not to exceed sixty
(60) days if it determines that a licensee or an employee of a licensee has:
(a) Violated or is not in compliance with any section of this Ordinance;
(b) Refused to allow an inspection of the Sexually Oriented Business premises
as authorized by this Ordinance;
(c) Conducted the business or maintained the premises in such a manner as to
create a nuisance to the public; or
(d) Known or should have known of illegal conduct or practices taking place
on the business premises or in the conduct of the business;
Sec.126.09 Revocation.
(a) The City Clerk shall issue a written statement of intent to revoke a Sexually
Oriented Business license if a cause of suspension in SECTION 126.08 occurs and the
license has been suspended within the preceding twelve (12) months.
(b) The City Clerk shall issue a written statement of intent to revoke a Sexually
Oriented Business license if the Clerk determines that:
(1) A licensee gave false or misleading information in the material
submitted during the application process;
(2) A licensee knew or should have known that the possession, use, or
sale of controlled substances occurred on the premises;
(3) A licensee knew or should have known that prostitution occurred
on the premises;
(4) A licensee knew or should have known that the operation of the
Sexually Oriented Business occurred during a period of time when the
licensee's license was suspended;
(5) A licensee knew or should have known that acts of sexual
intercourse, sodomy, oral copulation, masturbation, or other sex acts
occurred in or on the licensed premises. This Subsection will not apply to
an adult motel, unless the licensee knew or should have known that sexual
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activity occurred either (i) in exchange for money, or (ii) in a public place
or within public view.
(c) The fact that an action is being appealed shall have no effect on the revocation of
the license.
(d) When, after the notice and hearing procedure described in SECTION 126.10, the
City Clerk revokes a license, the revocation shall continue for one (1) year from the date
revocation becomes effective.
Sec. 126.10 Hearing; License Denial, Suspension, Revocation; Appeal.
(a) If the City Clerk determines that facts exist for denial, suspension, or revocation
of a license under this Ordinance, the City Clerk shall notify the applicant or licensee
(respondent) in writing of the intent to deny, suspend, or revoke the license, including the
grounds for the action, by personal delivery, or by certified mail. The notification shall be
directed to the most current business address on file with the City Clerk. Within five (5)
working days of receipt of such notice, the respondent may provide to the Board of
Public Works and Safety, in writing, a response that shall include a statement of reasons
why the license or permit should not be denied, suspended, or revoked. Within five (5)
days of the receipt of respondent's written response, the Board of Public Works and
Safety shall notify respondent in writing of the hearing date on respondent's denial,
suspension, or revocation proceeding.
(b) Within twenty (20) working days of the receipt of respondent's written response,
the Board of Public Works and Safety shall conduct a hearing at which respondent shall
have the opportunity to be represented by counsel and present evidence and witnesses on
his or her behalf. The Board of Public Works and Safety shall issue written findings
within five (5) days of the hearing. If a response is not received by the Board of Public
Works and Safety in the time stated or, if after the hearing, the Board of Public Works
and Safety finds that grounds as specified in this Ordinance exist for denial, suspension,
or revocation, then such denial, suspension, or revocation shall become final five (5) days
after the Board of Public Works and Safety sends, by certified mail, written notice that
the license has been denied, suspended, or revoked. Such notice shall include a statement
advising the applicant or licensee of the right to appeal such decision to the Wayne
Circuit or Superior Courts within ten (10) days of the Board's determination.
(c) If the Board of Public Works and Safety finds that no grounds exist for denial,
suspension, or revocation of a license, then within five (5) days after the hearing, the
Board of Public Works and Safety shall withdraw the intent to deny, suspend, or revoke
the license, and shall so notify the respondent in writing by certified mail of such action
and shall contemporaneously issue the license.
(d) The appeal of a denial, suspension or revocation under this chapter shall be
subject to the same rules and procedures, and shall be conducted in the same manner, as
prescribed for judicial review under Indiana Code Chapter 4-21.5-5, as the same shall be
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amended from time to time; provided, however, that notwithstanding the provisions of
those statutes, the following requirements apply to a petition for judicial review filed
under this chapter:
(1) The petition must be filed within ten (10) days of the issuance of the
Board of Works and Public Safety's decision; and
(2) Within fourteen (14) days from the date Richmond was served with the
petition, the Board shall prepare Richmond's record for the petitioner to transmit
to the court.
Sec. 126.11 Transfer of License.
A licensee shall not transfer his or her license to another, nor shall a licensee operate a
Sexually Oriented Business under the authority of a license at any place other than the
address designated in the application.
Sec.126.12 Regulations.
(a) Premises requirements:
(1) It shall be unlawful to own or operate a Sexually Oriented Business that is
not in compliance with the requirements stated in this section, provided that
Sexually Oriented Businesses in operation on the effective date of this ordinance
shall have sixty (60) days from such effective date to come into compliance with
subsections (2) through (9) of this section.
(2) Upon application for a Sexually Oriented Business license or a renewal of
such a license, the application shall be accompanied by a diagram of the premises
showing a plan thereof specifying the location of one or more manager's stations
and the location of all overhead lighting fixtures and designating any portion of
the premises in which patrons will not be permitted. A manager's station may not
exceed thirty-two (32) square feet of floor area. The diagram shall also designate
the place at which the license will be conspicuously posted, if granted. A
professionally prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram should be oriented to the
north or to some designated street or object and should be drawn to a designated
scale or with marked dimensions sufficient to show the various internal
dimensions of all areas of the interior of the premises to an accuracy of plus or
minus six (6) inches. The City Clerk 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 the diagram was prepared.
(3) 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
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restrooms. Restrooms may not contain video reproduction equipment. If the
premises has two or more manager's stations designated, 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.
(4) It shall be the duty of the licensee to ensure that the view area (specified in
Subsection (3) of this Section) remains unobstructed by any doors, curtains,
partitions, walls, merchandise, display racks, or other materials and, at all times,
to ensure that no patron is permitted access to any area of the premises which has
been designated as an area in which patrons will not be permitted in the
application filed pursuant to Subsection (2) of this Section.
(5) No alteration in the configuration or location of a manager's station may
be made without the prior approval of the City Clerk.
(6) It shall be the duty of the owners and operator, and it shall also be the duty
of any agents and employees present in the premises, to ensure that no patron is
permitted access to any area of the premises that has been designated as an area in
which patrons will not be permitted in the application filed pursuant to Section 12
(a) (2).
(7) Except for those premises identified in subsection (8) of this section, 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 the floor level. It shall be the
duty of the owners and operator, and it shall also be the duty of any agents and
employees present in the premises, to ensure that the illumination described in
this subsection is maintained at all times that any patron is present in the
premises.
(8) With respect to a Sexually Oriented Business that has individual booths:
(A) Each booth shall have a rectangular shaped entranceway of not less
than two (2) feet wide and six (6) feet high;
(B) There shall be no door, curtain or other obstruction blocking or
closing off such entranceway so as to obstruct the visibility of a patron;
(C) There shall be no openings of any kind existing between viewing
rooms or booths. Thus, the licensee shall, during each business day,
regularly inspect the walls between the viewing booths or rooms to
determine if any openings or holes exist.
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(D) It is the duty of the owners and operator of the premises to ensure
that at least one employee is on duty and situated in each manager's station
at all times that any patron is present inside the premises;
(E) 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. If the premises has two (2) or more manager's
stations designated, 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,
excluding restrooms, 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. Viewing booths must be separated at least twelve (12)
inches from the exterior walls of any other viewing booths by open space;
and
(F) 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 the floor level. However, if a lesser level of illumination shall
be necessary to enable a patron to view the adult entertainment in a booth,
a lesser amount of illumination may be maintained in the booth, provided,
however, at no time shall there be less than two (2) foot candles of
illumination, as measured from the floor. It shall be the duty of the
owners and operator, and it shall also be the duty of any agents and
employees present in the premises to ensure that the illumination
described in this subsection is maintained at all times that any patron is
present in the premises.
(9) No adult product shall be advertised or displayed in such a manner that the
adult product may be viewed by the public who is not a patron of the Sexually
Oriented Business.
(10) A person having a duty under subsections (2) through (9) of this section
commits a violation if he or she knowingly fails to fulfill that duty.
(11) A Sexually Oriented Business shall not be located within one thousand
(1000) feet of a:
(A) Residence;
(B) Place of worship or building that is used primarily for religious
worship and related religious activities;
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(C) Public or private educational facility including, but not limited to, a
child day care facility, nursery schools, preschools, kindergartens,
elementary schools, private schools, intermediate schools, junior high
schools, middle schools, high schools, vocational schools, secondary
schools, continuation schools, special education schools, junior colleges,
and universities; school includes the school grounds, but does not include
facilities used primarily for another purpose and only incidentally as a
school; or
(D) Public park or recreational area which has been designated for
park or recreational activities including but not limited to a park,
playground, nature trails, swimming pool, reservoir, athletic field,
basketball or tennis courts, pedestrian/bicycle paths, wilderness areas, or
other similar public land within the city which is under the control,
operation, or management of the city park and recreation authorities.
(12) A Sexually Oriented Business shall not be located within five hundred
(500) feet of another sexually oriented business.
(13) A Sexually Oriented Business lawfully operating:
(A) Subsequent to adoption of this Ordinance by the Richmond
Common Council shall be restricted to C-4, zone districts as provided in
Article XV, Chapter 154 of the City of Richmond Code.
(B) Prior to adoption of this Ordinance by the Richmond Common
Council shall be deemed a nonconforming use, as provided in Article XV,
Section 154.16 of the City of Richmond Code.
(14) All premises requirements of this section must be inspected annually by
the Enforcement Officer and a recommendation of approval or denial of
application forwarded to the City Clerk.
(b) Operational requirements:
(1) It shall be unlawful to own or operate a Sexually Oriented Business that is
not in compliance with the requirements stated in this section.
(2) A Sexually Oriented Business shall be kept in a sanitary condition at all
times. As a condition of licensure under this chapter, the Enforcement Officer
shall have the right to enter any licensed premises during business hours without
notice to insure compliance with this chapter, and it shall be unlawful for a person
to prevent or deny any such entry. The Enforcement Officer shall have the power
to determine if such business is in a sanitary condition. For such purpose, the
Enforcement Officer may, upon request, forward such information to the Wayne
County Health Department. If the Enforcement Officer shall determine, after an
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investigation by the Wayne County Health Department, that an unsanitary
condition exists within a Sexually Oriented Business, the City Clerk shall suspend
the license for such premises until such unsanitary condition is rectified.
(3) No licensee under this article, or his employee, shall violate any state
statute or city ordinance, or allow any other person to commit such a violation,
within such business or on parking areas or other property immediately adjacent
to or normally used for purposes of parking for such business, which property is
under the control of the business owner or owners or their lessee or lessor.
(4) Sexually Oriented Businesses shall not be open between the hours of
midnight and 10:00 a.m. and shall not be open on Sundays.
(5) Sexually Oriented Businesses shall not prepare or serve food to its patrons.
Sec.126.13 Obscenity.
(a) What constitutes obscenity.
Material under this article shall be considered obscene and unlawful if:
(1) The average person applying contemporary community standards would
find that the material, taken as a whole, appeals to the prurient interests;
(2) The material depicts or describes patently offensive representations or
descriptions of ultimate sex acts, normal or perverted, actual or simulated, or
patently offensive representations or descriptions of masturbation, excretory
functions, and lewd exhibition of the genitals; and
(3) The material, taken as a whole, lacks serious literary, artistic, political or
scientific value.
(b) Dealing in, sale, loan, rent or lease of obscene film and material is unlawful.
It shall be unlawful for any person, corporation, or officer, agent, director or employee of
a corporation, knowingly to deal in, sell, loan, rent or lease any material in the form of a
motion picture film, or other material defined by this article to be obscene.
(c) Public possession, exhibition and performance of obscene film and live material is
unlawful. It shall be unlawful for any person, corporation, or officer, agent, director or
employee of a corporation, knowingly to possess in public or exhibit or perform in any
public place a motion picture film, stage show, live act or production defined in this
article to be obscene.
(d) Sale, loan, exhibition or public possession of obscene literature is unlawful.
It shall be unlawful for any person, corporation, or officer, agent, director or employee of
a corporation, knowingly to sell, loan, exhibit or possess in public any book, magazine,
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pamphlet, paper, writing, card, advertisement, circular, print, picture, photograph,
instrument, statue, drawing or other similar material defined by this article to be obscene.
(e) Judicial determination before seizure of obscene material and provision for
adversary proceedings available after seizure.
(1) Upon request from the City Attorney, or the City Attorney's designee, a
Circuit or Superior Court judge may view the film, movie, motion picture,
videocassette, digital video disc, slides, or other photographic reproductions and
focus searchingly on the question of obscenity.
(A) If the judge views the material and determines that probable cause
exists that the material is obscene, the judge shall issue a warrant to seize
the material.
(B) After the seizure warrants are executed, all material and necessary
equipment housing the material, if the material cannot be segregated, shall
be preserved as evidence.
(2) After seizure of the material, but before a requested adversary proceeding,
upon a showing to the trial court that other copies of the material are not available
to the exhibitor, the trial court shall permit the seized material to be copied so
that showing can be continued pending a judicial determination of the obscenity
issue in an adversary proceeding.
(A) The trial court shall, upon granting a request to so copy, permit the
seized material to be copied, under circumstances which assure that there
will be no tampering with the material.
(B) The trial court shall order the original material to be returned
within twenty-four (24) hours after the granting of the request to copy.
(C) The copy shall be preserved by the City of Richmond as evidence.
(3) After seizure of the material, a prompt judicial determination of the
obscenity issue shall be available in an adversary proceeding, before a trial court,
at the request of an interested party. Adversary proceedings shall also be
available at the request of an interested party, where there has been no seizure of
the material, pursuant to a prior judicial determination.
(A) The adversary proceeding shall occur within twenty (20) days after
request.
(B) All parties may subpoena witnesses and present evidence.
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(C) If the trial court finds the material obscene at the adversary
proceeding, the cause shall proceed on the court docket to trial, and he
shall issue a warrant to seize the original material and any copies not being
preserved by the City of Richmond as evidence.
(D) If the trial court finds the material not to be obscene at the
adversary proceeding, all charges pending against any party for violation
of this article shall be dismissed, and he shall order the return of the
original material being preserved by the City of Richmond as evidence.
(f) Adversary proceedings available before seizure of any book, magazine, pamphlet,
paper, writing, card, advertisement, circular, print, picture, photograph, instrument,
statue, drawing or other similar material.
An adversary proceeding for judicial determination of obscenity shall be conducted by
the trial court before seizure of any book, magazine, pamphlet, writing, card,
advertisement, circular, print, picture, photograph, instrument, statue, drawing or other
similar material, at the request of an interested party.
(1) The adversary proceeding shall occur within ten (10) days after request.
(2) All parties may subpoena witnesses and present evidence.
(3) If the trial court finds the book, magazine, pamphlet, writing, card,
advertisement, circular, print, picture, photograph, instrument, statue, drawing or
other similar material to be obscene, the cause shall proceed on the court docket
to trial, and the trial court shall issue a warrant for the seizure of such material
found to be obscene and any copy thereof. All of such material seized shall be
preserved by the Richmond as evidence and disposed of in accordance with the
provisions of this article.
(4) If the trial court finds such material not to be obscene at the adversary
proceeding, all charges pending against any party for violation of this article shall
be dismissed.
(g) Destruction of obscene material.
After a trial and a finding that any material enumerated under this article is obscene and
after exhaustion of appellate remedies, if such finding of obscenity is unchanged, the trial
court may order the material destroyed upon petition of the City Attorney or his designee.
(h) Pre-emption by state law as to minors.
This article shall be inapplicable to the exhibition of obscenity in the form of a motion
picture film or sale or loan for monetary consideration of obscenity in the form of a
picture, photograph, drawing, sculpture, book, pamphlet, magazine, sound recording or
similar material to minors seventeen (17) years of age or younger, as this is made
unlawful by state law.
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Sec. 126.14 Additional Regulations Concerning Nudity.
(a) It shall be a violation for a person who knowingly and intentionally, in a Sexually
Oriented Business, appears in a state of nudity or engages in specified sexual activities.
(b) It shall be a violation for a person who knowingly or intentionally, in a Sexually
Oriented Business, appears in a semi-nude condition unless the person is an employee
who, while semi-nude, shall be at least six (6) feet from any patron or customer and on a
stage at least two (2) feet from the floor.
(c) It shall be a violation for an employee, while semi-nude in a Sexually Oriented
Business, to receive directly any pay or gratuity from any patron or customer, or for any
patron or customer to pay or give any gratuity directly to any employee, while that
employee is semi-nude in a Sexually Oriented Business.
(d) It shall be a violation for an employee, while semi-nude, to knowingly and
intentionally touch a customer or the clothing of a customer.
Sec.126.15 Exemptions.
It is a defense to prosecution under SECTION 15 that a person appearing in a state of
nudity did so in a modeling class operated:
(a) by a proprietary school, licensed by the State of Indiana; a college, junior college, or
university supported entirely or partly by taxation;
(b) by a private college or university which maintains and operates educational programs
in which credits are transferable to a college, junior college, or university supported
entirely or partly by taxation; or
(c) in a structure:
(1) which has no sign visible from the exterior of the structure and no other
advertising that indicates a nude person is available for viewing;
(2) where, in order to participate in a class, a student must enroll at least three (3)
days in advance of the class; and
(3) where no more than one nude model is on the premises at any one time.
Sec.126.16 Penalty.
(a) Any person, business, or corporation violating any provision of this article shall
be guilty of an ordinance violation and shall be subject to a fine not to exceed $2,500.00.
Each day a Sexually Oriented Business continues to operate is a separate offense or
violation.
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(b) A person, business, or corporation who operates or causes to be operated a
Sexually Oriented Business without a valid license or transfers a license (in violation of
SECTION 126.11 of this Ordinance) is also subject to a suit for injunction.
Sec.126.17 Severability.
In the event any section, subsection, clause, phrase or portion of this chapter is for any
reason held illegal, invalid or unconstitutional by any court of competent jurisdiction,
such portion shall be deemed a separate, distinct and independent provision, and such
holding shall not affect the validity of the remainder of this chapter. It is the legislative
intent of the Common Council that this chapter would have been adopted if such illegal
provision had not been included or any illegal application had not been made.
Sec. 126.18 Conflicting Ordinances.
(a) This chapter repeals Chapter 121 of the City of Richmond Code: Amusement
Arcades Ordinance.
(b) This chapter does not amend or repeal Chapter 115 of the City of Richmond
Code: Massage Parlor and Health Salon Ordinance.
(c) All other ordinances or parts of ordinances in conflict with the provisions of this
chapter are hereby repealed.
Passed and adopted this 6th day of November, 2006, by the Common Council of the City
of Richmond, Indiana.
S/S Karl Sharp , President
(Karl Sharp)
ATTEST: S/S Karen Chasteen City Clerk
(Karen Chasteen)
PRESENTED to the Mayor of the City of Richmond, Indiana, this _20th_ day of
November 2006, at 9:00 a.m.
S/S Karen Chasteen City Clerk
(Karen Chasteen)
APPROVED by me, Sarah L. Hutton, Mayor of the City of Richmond, Indiana, this
_20th_ day of November 2006, at 9:05 a.m.
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S/S Sarah L. Hutton Mayor
(Sarah L. Hutton)
ATTEST: S/S Karen Chasteen City Clerk
(Karen Chasteen)
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