HomeMy WebLinkAbout2004-OR-17Ordinance No. 2004-OR- 17
BEFORE THE COMMON COUNCIL
CITY OF JEFFERSONVILLE
STATE OF INDIANA
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6 AN ORDINANCE REGULATING_
7 SEXUALLY ORIENTED BUSINESSES,
8 IjIEPEALING ORDINANCE NO. 95-OR-35~
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11 WHEREAS, sexually oriented business require special supervision from the
12 public safety agencies of the City in order to protect and preserve the health, safety,
13 morals, and welfare of the patrons of such businesses as well as the citizens of the City;
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16 WHEREAS, the Common Council finds that sexually oriented businesses are
17 frequently used for unlawful sexual activities, including prostitution, and for sexual
18 liaisons of a casual nature; and
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20 WHEREAS, the concern over sexually transmitted diseases is a legitimate health
21 concern of the City Which further demands reasonable regulation of sexually oriented
22 businesses in order to protect the health and well-being of the citizens; and
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24 WHEREAS, licensing is a legitimate and reasonable means of accountability to
25 ensure that operators of sexually oriented businesses comply with reasonable regulations
26 and to ensure that operators do not knowingly allow their establishments to be used as
27 places of illegal sexual activity or solicitation; and
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29 WHEREAS, there is convincing documented evidence that sexually oriented
30 businesses, because of their very nature, have a deleterious effect on both the existing
31 businesses around them and the surrounding residential areas adjacent to them, causing
32 increased crime and the downgrading of property values; and
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34 WHEREAS, it is further recognized that sexually oriented businesses, due to their
35 nature, have serious objectionable operational characteristics, particularly when they are
36 located in close proximity to each other, thereby contributing to urban blight and
37 downgrading the quality of life in the adjacent area; and
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39 WHEREAS, the Common Council desires to minimize and control these adverse
40 effects and thereby protect the health, safety, and welfare of the citizenry; protect the
41 citizens from increased crime; preserve the quality of life; preserve the property values
42 and character of surrounding neighborhoods, and deter the spread of urban blight; and
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44 WHEREAS, the Common Council has determined that locational criteria alone do
45 not adequately protect the health, safety, and general welfare of the people of this City;
46 and
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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 Common Council to condone or legitimize
the distribution of obscene material, and the Council further 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.
IT IS THEREFORE ORDAINED by the Common Council of the City of
Jeffersonville:
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Section 100. Purpose and Findings
It is the ~urpose of this Ordinance to regulate sexually oriented
a. p_urpose.: to promote'health, safety, morals, and general welfare of the citizens
businesses in order
of the City; and to establish reasonable and uniform regulations to prevent deleterious
location and concentration of sexually oriented businesses within the City. The
provisions of this Ordinance have neither 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 the 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.
b. Findings: Based on evidence concerning the adverse secondary effects of
adult uses on the community presented to the Council and in reports made available to
the Council, and on findings incorporated in the cases of City of Renton v. Playtime
Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50
(1976), FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991), City of Erie v. Pap's A.M., 120 S. Ct. 1382 (2000), and on
studies in other communities including, but not limited to: Phoenix, AZ; Minneapolis,
MN; St. Paul, MN; Houston, TX; Indianapolis, IN; Amarillo, TX; Garden Grove, CA;
Los Angeles, CA; Whittier, CA; Austin, TX; Seattle, WA: Oklahoma City, OK;
Cleveland, OH; Beaumont, TX; Dallas, TX; Newport News, VA: Bellevue, WA: New
York, NY; and St. Croix County, WA; 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 common Council hereby finds:
1) s~'Xually 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.
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2) Certain employees of sexually oriented businesses, defined in this
Ordinance as adult theatres and adult cabarets, engage in higher incidence 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 cubicles 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 theatres, adult arcades, and sexually
oriented businesses for the purpose of engaging in sex within the premises of such
sexually oriented businesses.
6) At least 50 communicable diseases may be spread by activities
occurring in sexually oriented businesses, including, but not limited to, syphilis,
gonorrhea, human immunodeficiency vires infection (HIV-AIDS), genital herpes,
hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella
infections.
7) Sanitary conditions in some sexually oriented businesses are unhealthy,
in part, because the activities conducted there are unhealthy, and in part, because
of the unregulated nature of the activities and the failure of the owners and the
operators of the facilities to self-regulate those activities and maintain those
facilities.
8) Numerous studies and reports have determined that semen is found in
the areas of sexually oriented businesses where persons view "adult" oriented
films.
9) The aforementi°ned findings raise substantial and legitimate
governmental concerns.
10) Sexually oriented businesses have operational characteristics which
should be reasonably regulated in order to protect those substantial and legitimate
governmental concerns.
11) 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 operated in
a manner consistent with the health, safety, and welfare of its patrons and
employees, as well as the citizens of the City. It is appropriate to require
reasonable assurances that the licensee is the actual operator of the sexually
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oriented business, fully in possession and control of the premises and activities
occurring therein.
12) Removal of doors on adult booths and requiring sufficient lighting o.n
premises with adult booths advances a substantial governmental interest m
curbing the illegal and unsanitary sexual activity occurring in adult theatres.
13) 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.
14) The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the sexually oriented
business, where such information is substantially related to the significant
governmental interest in the operation of such uses, will aid in the preventing the
spread of sexually transmitted diseases.
15) In the prevention of the spread of communicable diseases, it is
desirable to obtain a limited amount of information regarding certain employees
who may engage in the conduct which this Ordinance is designed to prevent, or
who are likely to be Witnesses to such conduct.
16) The fact that an applicant for an adult use license has been convicted
of a sexually related crime leads to the rational assumption that the applicant may
engage in that conduct in contravention of this Ordinance.
17) The barring of such individuals from the management of adult uses
for a period of years serves as a deterrent to, and prevents conduct, which leads to,
the transmission of sexually transmitted diseases.
18) The general welfare, health, morals, and safety of the citizens of the
City will be promoted by the enactment of this Ordinance.
Section 200. Definition.s_
Words, terms and phrases in this Ordinance shall be defined as follows:
a. Adult Arcade means any place to which the public is permitted or invited,
wherein coin-operated or slug-operated or electronically, electrically, or mechanically
controlled still or motion picture machines, projectors, or other image-producing devices
are regularly maintained to show images to five (5) or fewer persons per machine at any
one-time, and where the images so displayed are distinguished or characterized by their
emphasis upon matters "specified sexual activities" or "specified anatomical areas."
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b. Adult Bookstore, Adult Novelty Store or Adult Video Store. means a
commercial establishment which has a significant or substantial portion of its stock-in-
trade, or derives a significant or substantial portion of its revenues or devotes a
significant or substantial portion of its interior business or advertising, or maintains a
substantial section of its sales or displace space for the sale or rental, 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, compact discs, slides, digital video disks,
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.
c. Adult Cabaret means a nightclub, bar, restaurant, or similar commercial
establishment which regularly features:
1) persons who appear semi-nude; or
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2) live performances which are characterized by the exposure of speclfi
anatomical areas" or by "specified sexual activities;" or
3) films, motion pictures, video cassettes, digital video disks, slides or
other photographic reproductions which are characterized by the exhibition or
display of "specified sexual activities" or "specified anatomical areas."
d. Adult Motel means a hotel, motel, or similar commercial estabhshment, which:
1) offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films, motion
pictures, video cassettes, digital video disks, 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 th/s 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.
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1 e.A.__dult Motion Picture Th~eatre_ means a commercial establishment where, for
2 any form of consideration, films, motion pictures, video cassettes, digital video disks,
3 slides, or similar photographic reproductions are regularly shown which are characterized
4 by the depiction or description of "specified sexual activities" or "specified anatomical
5 areas."
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7 f. _Adult Theatre means a theatre, concert hall, auditorium, or similar commercial
8 establishment which regularly features persons who appear nude or semi-nude, or live
9 performances which are characterized by the exposure of"spec~fied anatomwat are or
10 by "specified sexual activities."
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12 g. Di__stin~uished or Characterized by_an Emp_~is Upon means the dominant or
13 principal theme of the object referenced. For instance, when the phrase refers to films
14 "which are distinguished or characterized by an emphasis upon the exhibition or display
15 or specified sexual activities or specified anatomical areas", the films so described are
16 those whose dominant or principal character and theme are the exhibition or display of
17 "specified anatomical areas" or "specified sexual activin ·
18 ee Em lov, and Em_lLlownent describe and pertain to any person who
19 h. Emplov._~,,,,, ~hPe ~r~ises of a -sexually oriented business on a full-time, part-
20 performs any serv~c ........ ~
21 time, or contractual basis, regardless of whether the person is denominated as an
22 employee, independent contractor, agent, or by another status. E__~ployee does not
23 include a person exclusively on the premises for repair or maintenance of the premises, or
24 for the delivery of goods to the premises.
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26 i. Enforcement Officer. shall mean the City Zoning Administrator or such person
27 as may be ~lesignated by the Mayor.
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29 j. Escoa means a person who, for consideration, and for another person, agrees or
30 offers: (1) to act as a companion, guide, or date, or (2) to privately model lingerie, or (3)
31 to privately perform striptease.
32 . rt A encv means a person or business association that for a fee, tip, or
33 k .~sco~. _ ~:.~h~o offers to furnish, or advertises to furnish, escorts as one of
34 other consloeratlon, ~ustil~,~o,
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37 1. Establish or Establis~___~en_t means and includes anY of the following:
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39 1) the operating or commencement of any sexually oriented business as a
40 new business;
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42 2) the conversion of an existing business, whether or not a sexually
43 oriented business, to any sexually oriented business;
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45 3) the addition of any sexually oriented business to any other existing
46 sexually oriented business; or
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2 4) the relocation of any sexually oriented business.
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4 m. Licensee_ means a person in whose name a license to operate a sexually
5 oriented business has been issued, as well as the individual listed as an applicant on the
6 application for a license; and in the case of an employee, a person in whose name a
7 license has been issued authorizing employment in a sexually oriented business·
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9 n. Nude, Nudity or a State of Nudity. means the showing of the human male or
10 female genitals, pubic area, vulva, anus, or anal cleft with less than a fully opaque
11 covering, the showing of the female breast with less than a fully opaque coveting of any
12 part of the nipple, or the showing of the covered male genitals in a discernibly turgid
13 state·
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15 o. Operate or Cause to be Operatec~ means to cause to function or to put or keep
16 in a state o~ doing business. Operator means any person on the premises of a sexually
17 oriented business who is authorize to exercise operational control of the business, or who
18 causes to function or who puts or keeps in operation, the business. A person may be
19 found to be operating or causing to be operated a sexually oriented business regardless of
20 whether that person is an owner, part owner, or licensee of the business.
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22 p. Person~ means an individual, proprietorship, parmership, corporation,
23 association, or other legal entity.
24 ~ · ~ - ....... or Rem~larly Shown means a consistent or su~bs!an!!a!
25 -a. -- ~ - .... '-- ~:lms or ~erformances exhlmtea consumre a ~uu
26 course of conduct, such mm mu tt },
27 portion of the films or performances offered as part of the ongoing business of the
28 sexually oriented business.
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30 r. Semi-nude or in a Semi-nude Condition_ means the showing of the female
31 breast belo~v a horizontal line across the top of the areola at its highest point or the
32 showing of the male or female buttocks. This definition shall include the entire lower
33 portion of the human female breast, but shall not include any portion of the cleavage of
34 the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other
35 wearing apparel, provided the areola is not exposed in whole or in part.
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37 s. _Semi-nude Model Studio_ means a commercial establishment which regularly
38 features a person (or persons) who appears s~ai-nude and is provided to be observed,
39 sketched, drawn, painted, sculptured, or photographed by other person who pay money or
40 any form of consideration, by shall not include proprietary school licensed by the State of
41 Indiana or a college, junior college or university supported entirely or in part by public
42 taxation; a private college or university which maintains and operates educational
43 programs in which credits are transferable to a college, junior college, or university
44 supported entirely or partly by taxation.
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t. S_exual Encounter C~enter means a business or commercial establishment, that
as one of its principal businesses purposes, offers for any form of consideration, a place
where two (2) or more persons may congregate, associate, or consort for the purpose of
or any sexually
specffied sexual act~wt~e . The definition of sexual encounter center
oriented business 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.
u. Se~xuallv O_dented Business means an adult arcade, adult bookstore, adult
novelty store, adult video store, adult cabaret, adult motel, adult motion picture theatre,
adult theatre, escort agency, semi-nude model studio, or sexual encounter center.
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v. S ecified 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. ~ed Criminal Activity means any of the following offenses:
1) prostitution or promotion of prostitution, dissemination of obscenity;
sale, distribution, or display of harmful material to a minor; sexual performance
by a child, possession or distribution of child pornography; public lewdness;
indecent exposure; indecency with a child; engaging in organized criminal
activity relating to a sexually oriented business; sexual assault; molestation of a
child; distribution of a controlled substance; or any similar offenses to those
described above under the criminal or penal code of Indiana and other state and
countries;
2) for which:
a) less than two (2) years have elapsed since the date of conviction
or the date of release from confinement imposed for the conviction,
whichever is the later date, if the conviction is of a misdemeanor offense;
b) less than five (5) years have elapsed since the date of
conviction or the date of release from confinement for the conviction,
whichever is the later date, if the conviction is of a felony offense; or
c) less than five (5) years have elapsed since the date of the last
conviction or the date of release from confinement for the last conviction,
whichever is the later date, if the convictions are of two (2) or more
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1 misdemeanor offenses or a combination of misdemeanor offenses
2 occurring within any twenty-four (24) month period.
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4 3) The fact that a conviction is being appealed shall have no effect on the
5 disqualification of the applicant or a person residing with the applicant.
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7 x. Specified Sexual Activities means any of the following:
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9 1) the fondling of another person's genitals, pubic region, anus, or female
10 breasts;
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12 2) sex acts, normal or perverted, actual or simulated, including
13 intercourse, oral copulation, masturbation, or sodomy; or
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15 3) excretory functions as part, or in connection with, any of the activities
16 set forth in 1) and 2) above.
17 . ubstantial Enlargement of sexually oriented business means the increase in
18 Y ~ ..... ~ · '[ '- ..... e than twenW-five (25%) percent, as the floor
19 .floor areas occup/ea ~)y me t)usmess oy mu, -a
20 areas exist on the date this Ordinance takes effect.
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22 z. Transfer of Ownership or Control of a sexually oriented business means and
23 includes any of the following:
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25 1) the sale, lease, or sublease of the business;
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27 2) the transfer of securities which constitute a controlling interest in the
28 business, whether by sale, exchange, or similar means; or
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30 3) the establishment of a trust, gift, or other similar legal devise which
transfers 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.
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Section 300. Classifications
Sexually oriented businesses are classified as follows:
a. adult arcades;
b. adult bookstores, adult novelty stores, or adult video stores;
c. adult cabarets;
d. adult motion picture theatres;
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e. adult theatres;
f. escort agencies;
g. semi-nude model studios; and
i. sexual encounter centers.
Section 400. License Requireg
a. It is unlawful:
1) For any person to operate a sexually oriented business without a valid
sexually oriented business license issued by the City pursuant to this Ordinance.
2) For any person who operates a sexually oriented business to employ a
person to work for the sexually oriented business who is not licensed as a sexually
oriented business employee by the City pursuant to this Ordinance.
3) For any person to obtain employment with a sexually oriented business
without having secured a sexually oriented business employee license pursuant to
this Ordinance.
b. An application for a license must be made on a form provided by the City. All
applicants muSt be qualified according to the provisions of this Ordinance.
c. An applicant for a sexually oriented business license or a sexually oriented
business employee license shall file with the Enforcement Officer a completed
application made on a form prescribed and provided by the Clerk-Treasurer. An
application shall be considered complete if it includes the information required in this
Section. The applicant shall be qualified according to the provisions of this Ordinance.
The application shall be notarized and signed under the penalties for perjury. The
application shall include the information called for in subsections 1) through 6), and
where applicable, subsection 7), as follows:
1) The full true name and any other names used in the preceding five (5)
years.
2) The current business address.
3) Either a set of fingerprints suitable for conducting necessary
background checks pursuant to this Ordinance, or the applicant's Social Security
Number, to be used for the same purpose.
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4) If the application is for a sexually oriented business license, the name,
business location, legal description, business mailing address and phone number
of the proposed sexually oriented business.
5) Written proof of age, in the form of either (i) a copy of a birth
certificate and current photograph, (ii) a current and valid driver's license with
photograph, or (iii) other photograph identification document issued by a
governmental agency.
6) 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 for reasons thereof.
7) If the application is for a sexually oriented business license, the name
and address of the statutory agent or other agent authorized to receive service of
process.
The information provided pursuant to subsections 1) through 7) shall be
supplemented in writing by certified mail, return receipt requested, to the
Enforcement Officer within ten (10) days of a change of any circumstances which
would render the information originally submitted false or incomplete.
d. The application for a sexually oriented business license 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.
If the anplicant is an individual, he or she shall sign the application for a
e. applicant. If the applicant is other than an individual (such as a corporation),
license as
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 V, and each applicant
shall be considered as a license if a license is granted.
f. A person who possessed a valid business license, and or any other permits or
variances is not exempt from the requirement 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.
g. e information provided by an applicant in connection with the application
for a licenseTh~der this Ordinance shall be maintained by the Enforcement Officer on a
confidential basis, and may be disclosed only: (1) to other governmental agencies in
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connection with a law enforcement or public safety function, or (2) as may otherwise be
required by law or a court order.
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4 Section 500. Issuance of License
5 e illin of a completed application for a sexually oriented business
6 a. Upon th . g. ~ ~-~ine~ employee license, the Enforcement Officer shall
7 license or a sexuauy onen~e~ uu ....... , -
8 issue a Temporary License to the applicant, which Temporary License shall expire upon
9 the final decision of the Enforcement Officer to deny or grant the license. Within twenty
10 (20) days after the receipt of a completed application, the Enforcement Officer shall
11 either issue a license, or issue a written notice of intent to deny a license, to the applicant.
12 The Enforcement Officer shall approve the issuance of a license unless one or more of
13 the following is found to be true:
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15 1) An applicant is less than eighteen (18) years of age.
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17 2) An applicant is delinquent in the payment to the City of taxes, fees,
18 fines, or penalties assessed against or imposed upon the applicant in relation to a
19 sexually oriented business.
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21 3) An applicant has failed to provide information as required in Section
22 400 for issuance of the license.
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24 4) An applicant has been convicted of a specified criminal activity. The
25 fact that a conviction is being appealed shall have no effect under this subsection.
26 For the purpose of this subsection, conwct~on:
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28 a) means a conviction or a guilty plea; and
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30 b) includes a conviction of any business entity for which the
31 applicant had, at the time of the offense leading to the conviction for a
32 specified criminal activity, a management responsibility or a controlling
33 interest.
5) The license application fee required by this Ordinance has not been
paid.
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6) An applicant has falsely answered a question or request for information
on the application form.
7) 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 the City's Zoning Ordinance, or is not in compliance with the location
restrictions established for sexually oriented businesses in the appropriate zoning
district(s).
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b. An applicant that is ineligible for a license due to a conviction may only
qualify for a sexually oriented business license when the time period required by the
applicable subsection in Section 200 has elapsed.
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, if the license is for a sexually oriented business, the address of the sexually
oriented business. A sexually oriented business employee license shall contain a
photograph of the licensee. The sexually oriented business 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. A sexually oriented business employee shall keep the
employee's license on his or her person or on the premises where the license is then
working or performing, and shall produce such license for inspection upon request by a
law enforcement officer or other authorized city official.
Section 600. Fees.
a. An applicant for a sexually oriented business license shall pay an initial license
fee in the sum of $250.00 and an annual renewal license fee in the sum of $125.00. Both
fees are non-refundable.
b. An applicant for a sexually oriented business employee license shall pay an
initial license fee in the sum of $100.00 and an annual renewal fee in the sum of $50.00.
Both fees are non-refundable.
Section 700. Inspection.
a. For the purpose of ensuring compliance with this Ordinance, an applicant,
operator, or licensee shall permit law enforcement officers and any other federal, state,
county, or city agency 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.
Section 800. Expiration of License.
a. Each license shall expire one (1) year from the date of issuance and may be
renewed only by making application as provided in Section 400. An application for
renewal shall be made at least thirty (30) days before the expiration date, and when made
less than thirty (30) days before the expiration date, the expiration of the license will not
be affected.
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1 b. When the City denies renewal of a license, the applicant shall not be issued a
2 license for one (1) year from the date of denial. If, subsequent to the denial, the City
3 finds that the basis for denial of renewal license has been corrected or abated, the
4 applicant shall be granted a license if at least ninety (90) days have elapsed since the date
5 the denial became final.
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Section 900. Suspension.
The City shall issue a written intent to suspend a license for a period not to exceed
thirty (30) 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; or
b. refused to allow an inspection of the sexually oriented business premises as
authorized by this Ordinance.
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17 Section 1000. Revocation.
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19 a. The Enforcement Officer shall issue a written statement of intent to revoke a
20 sexually oriented business license if a cause of suspension in Section 900 occurs and the
21 license has been suspended within the preceding twelve (12) months.
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23 b. The Enforcement Officer shall issue a written statement of intent to revoke a
24 sexually oriented business license if the Officer determines that:
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26 1) a licensee gave false or misleading information in the material
27 submitted during the application process;
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29 2) a licensee has knowingly allowed possession, use, or sale of controlled
30 substances on the premises;
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32 3) a licensee has knowingly allowed prostitution on the premises;
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34 4) a licensee has knowingly operated the sexually oriented business
35 during a period of time when the licensee's license was suspended;
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37 5) a licensee has knowingly allowed any act of sexual intercourse,
38 sodomy, oral copulation, masturbation, or other sex to occur in or on the licensed
39 premises. This subsection will not apply to an adult motel, unless the licensee
40 knowingly allowed sexual activities to occur either (i) in exchange for money, or
41 (ii) in a public place or within public view;
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43 6) a licensee has knowinglylviolated any provisions of this Ordinance.
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45 c. The fact that a conviction is being appealed shall have no effect on the
46 revocation of the license.
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1 d. When. after the notice and hearing procedure described in Section 1100, the
2 Enforcement Officer revokes a license, the revocation shall continue for one (1) year and
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4 the licensee shall not be issued a sexually oriented business license for one (1) year from
5 the date revocation becomes effective, provided that, if the conditions of Section 1100a
6 are met, a Provisional License will be granted pursuant to that Section. If, subsequent to
7 revocation, the Enforcement Office finds that the basis for the revocation found in the
8 aforementioned subsections of this Section has been corrected or abated, the applicant
9 shall be granted a license if at least ninety (90) days have elapsed since the date the
10 revocation became effective.
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12 Section 1100. _Hearing, License Denial, Suspension, Revocation, Appeal..
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14 a. If the Enforcc~uent Officer determines that facts exist for denial, suspension, or
15 revocation of a license under this Ordinance, the Enforcement Officer shall notify the
16 applicant or licensee (respondent) in writing of the intent to deny, suspend, or revoke the
17 license, including the grounds therefore, by personal delivery, or by certified mall. The
18 notification shall be directed to the most current business address on file with the
19 Enforcement Officer. Within five (5) working days of receipt of such notice, the
20 respondent may provide the Board of Public Works and Safety, in writing, a response that
21 shall include a statement of reasons why the license or permit should not be denied,
22 suspended, or revoked. Within three (3) days of the receipt of respondent's written
23 response, the Board of Public Works and Safety shall notify respondent in writing of the
24 hearing date on respondent's denial, suspension, or revocation proceeding.
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26 Within ten (10) working days of the receipt of respondent s written response, the
27 Board of Public Works and Safety shall conduct a hearing at which respondent shall have '
28 the opportunity to be represented by counsel and present evidence and witnesses on his or
29 her behalf. If a response is not received by the Board of Public Works and Safety in the
30 time stated or, if after the hearing, the Board of Public Works and Safety finds that
31 grounds as specified in this Ordinance exist for denial, suspension, or revocation shall
32 become final five (5) days after the Board of Public Works and Safety sends, by certified
33 mail, written notice that the license has been denied, suspended, or revoked. Such notice
34 shall include a statement advising the applicant or licensee of the right to appeal such
35 decision to a court of competent jurisdiction.
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37 If the Board of Public Works and Safety finds that no grounds exist for denial,
38 suspension, or revocation of a license, then within five (5) days after the hearing, the
39 Board of Public Works and Safety shall withdraw the intent to deny, suspend, or revoke
40 the license, and shall so notify the respondent in writing by certified mail of such action
41 and shall contemporaneously issue the license.
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43 b. When a decision to deny, suspend, or revoke a license becomes final, the
44 applicant or licensee (aggrieved party) whose application for a license has been denied, or
45 whose license has been suspended or revoked, shall have the right to appeal such action
46 to a court of competent jurisdiction. Upon the filing of any court action to appeal,
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challenge, restrain, or otherwise enjoin the City's enforcement of the denial, suspension,
or revocation, the City shall immediately issue the aggrieved party a Provisional License.
The Provisional License shall allow the aggrieved party to continue operation of the
sexually oriented business or to continue c~nployment as a sexually oriented business
employee, as the case may be, and will expire upon the court's ~try of a judgment on the
aggrieved party's action to appeal, challenge, restrain, or otherwise enjoin the City's
enforcement.
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Section 1200. 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.
Section 1300. Location of Sexuall~cOrimated Businesses.
a. A p~rson shall not operate or cause to be operated a sexually oriented business
in any zoning district other than those districts that allow such businesses.
b. A person shall not operate or cause to be operated a sexually oriented business
within 1,000 feet of:
1) A church, synagogue, mosque, temple, or building which is used
primarily for religious worship and related religious activities;
2) A public or private educational facility including, but not limited to,
child day care facilities, 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;
3) A bounda~ of a residential district as defined in the City Zoning Code;
4) A public park or recreational area which has been designated for park
or recreational activities including, but not limited to, a park, playground, nature
trials, swimming po°ls, reservoir, athletic field, basketball or tennis courts,
pedestriarffbicycle 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;
5) The property line of a lot devoted to a residential use as defined in the
City Zoning Code;
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1 6) Any premises licensed pursuant to the alcoholic beverage control
2 regulations of the State.
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4 c. A person shall not cause or permit the operation, establishment, substantial
5 enlargement, or transfer of ownership or control of a sexually oriented business within
6 1,000 feet of another sexually oriented business.
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8 d. A person shall not cause or permit the operation, establishment, or
9 maintenance of more than one sexually oriented business in the same building, structure,
10 or portion thereof, or the increase of floor area of any sexually oriented business in any
11 building, structure, or portion thereof containing another sexually oriented business.
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13 e. For the purpose of subsection b of this Section, measurement shall be made in
14 a straight line, without regard to the intervening structures or objects, from the nearest
15 portion of the building or structure used as part of the premises where a sexually oriented
16 business is conducted, to the nearest property line of the premises of a use listed in
17 subsection b. The presence of a city, county, or other political subdivision boundary shall
18 be irrelevant for purposes of calculating and applying the distance requirements of this
19 Section.
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21 f. For proposes of subsection c of this Section, the distance between any two
22 sexually oriented buSinesses shall be measured in a straight line, without regard to the
23 intervening structures or objects or political boundaries, from the closest exterior wall of
24 the structure in which each business is located.
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26 g. Any sexually oriented business lawfully operating on March 15, 2004, that is
27 in violation of subsections a through f of this Section shall be deemed nonconforming
28 use. The nonconforming use will be permitted to continue for a period not to exceed one
29 (1) year, unless sooner terminated for any reason or voluntarily discontinued for a period
30 of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged,
31 extended, or altered except that the use may be changed to a conforming use. If two or
32 more sexually oriented businesses are within 100 feet of another and otherwise in a
33 permissible location, the sexually oriented business which was first established and
34 continually operating at a particular location is the nonconforming use and the later
35 established business(es) is/are nonconforming.
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37 h. A sexually oriented business lawfully operating as a conforming use is not
rendered a nonconforming use by the location, subsequent to the grant or renewal of the
sexually oriented business license, of a use listed in subsection b of this Section within
100 feet of the sexually oriented business. This provision applies only to the renewal of a
valid license, and does not apply when an application is made for a license after the
applicant's previous license has expired or been revoked.
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1 Section 1400. _Regulations Pertaining to Exhibition of Sexually Explicit Films, Videos~
2 o~r Live Entertainment in Viewing Rooms:
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4 a. A person who operates or causes to be operated a sexually oriented business
5 (other than an adult motel) which exhibits on the premises, in a viewing room of less than
6 one hundred fifty (150) square feet of floor space, a film, video cassette, digital video
dis . live entertainment, or other video reproduction which depicts specified sexual
8 ac~tik4ities or specified anatomical areas, shall comply with the following requirements:
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10 1) Upon application for a sexually oriented license, the application shall
11 be accompanied by a diagram of the premises showing a plan thereof specifying
12 the location of one or more manager's stations and the location of all overhead
13 lighting fixtures and designating anY portion of the pramises in which patrons will
14 not be permitted. A manager's station may not exceed thirty-two (32) square feet
15 of floor area. The diagram shall also designate the place at which the permit, if
16 granted, will be conspicuously posted. A professionally prepared diagram in the
17 nature of an engineer's or architect's blueprint shall nOt be required; however,
18 each diagram should be oriented to north or to some designated street or object
19 and should be drawn to a designated scale or internal dimensions of all areas of
20 the interior of the premises to an accuracy of plus or minus six (6) inches. The
21 City may waive the foregoing diagram for renewal applications if the applicant
22 adopts a diagram that was previously submitted and certified that the
23 configuration of the premises has not been altered since it was prepared.
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25 2) The application shall be sworn to be true and correct by the applicant.
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27 3) No alteration in the configuration or location of a manager's station
28 may be made without the prior approval of the City.
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30 4) It is the duty of the licensee of the premises to ensure that at least one
31 (1) licensed employee is on duty and situated in each manager's station at all
32 times that any patron is present inside the premises.
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34 5) The interior of the premises shall be configured in such a manner that
35 there is an unobstructed view from a manager's station of very area of the
'~ which any patron is permitted access for any purpose, excluding
36 premises - · · '~ ...... oduction eauipment. If the
37 restrooms. Restrooms may not coma}~ wucu t~v, -~
38 premises has two (2) or more manager s stations designated, then the interior of
39 the premises shall be configured in such a manner that there is an unobstructed
40 view of each area of the premises to which any patron is permitted access for any
41 purpose form at least one of the manager's stations. The view required in this
42 ~ subsection must be by direct line of sight from the manager's station.
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44 6) It shall be the duty of the licensee to ensure that the view area specified
45 in subsection 5) remains unobstructed by any doors, curtains, partitions, walls,
46 merchandise, display racks, or other materials and, at all times, to ensure that no
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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 1) of this Section.
7) No viewing room may be occupied by more than one (1) person at any
time.
8) The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are permitted access
to an illumination of not less than five (5.0) foot-candles as measured at the floor
level.
9) It shall be the duty of the licensee to ensure that the illumination
described above is maintained at all times that any patron is present in the
premises.
10) No licensee shall allow openings of anY kind to exist between
viewing rooms or booths.
11) No person shall make or attempt to make an opening of any kind
between booths or rooms.
12) The licensee shall; during each business day, regularly inspect the
walls between the viewing booths to determine if any openings or holes exist.
13) The licensee shall cause all floor coverings in viewing booths to be
nonporous, easily cleanable surfaces, with no rugs or carpeting.
14) The licensee shall cause all wall surfaces and ceiling surfaces in
viewing booths to be constructed of, or permanently covered by, nonporous,
easily cleanable material. No wood, plywood, composition board, or other porous
material shall be used within forty-eight (48) inches of the floor.
b. A person having a duty under subsection 1) through 14) of Subsection a is in
violation of this Ordinance if he or she knowingly falls to fulfill that duty.
Section 1500. ~lat~ies-'
a. An escort agency shall not employ anY person under the age of eighteen (18)
years.
b. A person commits an offense if the person acts as an escort, or agrees to act as
an escort, for any person under the age of eighteen (18) years.
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1 Section 1600. AdditionalRe lations Conccm~in~diw---
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3 a. It shall be prohibited for a person to knowingly and intentionally, in a sexually
4 oriented business, appear in a state of nudity or engage in specified sexual activities.
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6 b. It shall be prohibited for a person to knowingly or intentionally, in a sexually
7 oriented business, appear in a semi-nude condition, unless the person is an employee
8 who, while semi-nude, is at least six (6) feet from any patron or customer and on a stage
9 at least two (2) feet from the floor.
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11 c. It shall be prohibited for an employee, while semi-nude in a sexually oriented
12 business, to receive directly any pay or gratuity from any patron or customer, or for any
13 patron or customer to pay or give any gratuity directly to any employee, while that
14 employee is semi-nude in a sexually oriented business.
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16 d. It shall be prohibited for an employee, while semi-nude, to knowingly and
17 intentionally touch a customer or the clothing of a customer.
18 ~'nst Children in a Sexuall Oriented Business_.
19 Section 1700.
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21 A person shall not knowingly allow a person under the age of eighteen (18) years
22 on the premises of a sexually oriented business.
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24 Section 1800. ~tion_.
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26 No sexually oriented business, except for an adult motel, may remain open at any
27 time between the hours of one o'clock (1:00) A.M. and eight o'clock (8:00) A.M. on
28 weekdays and Saturday, and one o'clock (1:00 A.M.) and noon (12:00) P.M. on Sundays.
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30 Section 1900. ~ons_.
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32 It is a defense to prosecution under Section 1600 that a person appearing in a state
33 of nudity did so in a modeling class operated:
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35 a. by a proprietary school, licensed by the State of Indiana; a college, junior
36 college, or university supported entirely or partly by taxation;
b. by a private college or university which maintains and operates educational
programs which credits are transferable to a college, junior college, or university
supported entirely or partly by taxation; or
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c. in a structure:
1 which has no sign visible from ¢e ex.t,e,ri~or ~of th.e ~t_m~.ct~ and no
other adCertising that indicates a nude person is avmtame ~or viewing,
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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 (1) nude model is on the premises at any one
time.
Section 2000. ~junction.
A person who operates or causes to be operated a sexually oriented business
without a valid license or in violation of Section 1200 of this Ordinance is subject to suit
for injunction.
Section 2100. Penalty..
A violation of this Ordinance may be punished by a fine not to exceed $2,500.
Each day a sexually oriented business so operates in violation of this ordinance is a
separate offense or violation.
Section 2200. Severability~
Each section and provisions of this Ordinance are hereby declared to be
independent divisions and subdivisions and, not withstanding any other evidence of
legislative intent, it is hereby declared to be the controlling legislative intent that if any
provisions of said Ordinance, or the application thereof to any person or circumstance is
held to be invalid, the remaining sections or provisions and the application of such
sections and provisions to any person or circumstances other than those to which it is
held invalid, shall not be affected thereby, and it is hereby declared that such sections and
provisions would have been passed independently of such section or provision so known
to be invalid.
Section 2300. Conflicting Ordinances.
All ordinances or parts of ordinances in conflict with the provisions of this
Ordinance are hereby repealed including 95-OR-35.
SO oRDAINED on this __
Section 2400. Effective Date.
This Ordinance shall be enforced from and after upon publication pursuant to I.C.
36-4-6-14, 36-5-2-10, and I.C. 5-3-1.
day of ,2003.
COMMON COUNCIL OF
CITY OF JEFFERSONVILLE, iNDIANA
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obert Waiz,/Jr.
Presiding Officer
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ATTEST:
Clerk and Treasurer
Presented by me as Clerk and Treasurer to the Mayor of said City of
2004 at
_._~ ~ day of- (3~C~V,\ -- -- --'
Jeffersonville this
__ ~ ~z-m'
edb methis /'~ dayof /~,
Approved and sign y 4t- - ~
~bert L. Wai
Peggy Wildeq'~
Clerk and Treasurer
.~ ., 2004.
~ Mayor
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Prepared by:
Leslie D. Merkley
City Attorney
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