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Ordinance No. 0965 02-25-1991� ORDINANCE NO. 965 OFFICIAL TITLE AND SUMMARY I. Title AN ORDINANCE ESTABLISHING A NEW CHAPTER OF THE CITY CODE OF THE CITY OF FRIDLEY, CHAPTER 127, ENTITLED "SEXUALLY ORIENTED BUSINESSES." II. Summarv The City Council of the City of Fridley does hereby ordain as follows: The ordinance defines Sexually Oriented Businesses. Included in the definition are adult book and media stores; adult cabarets; adult establi�ments; adult hotels or motels; adult mini-motion picture theaters;� adult modeling studios; adult motion picture arcades; adult motion picture theaters, adult novelty businesses. The definition also includes specified anatomical areas and specified sexual activities. The above ordinance was adopted on first reading on February 11, 1991, and on second reading on February 25, 1991. This ordinance � will be published on March 6, 1991, and shall become effective 15 days after publication. No Sexually Oriented Business as defined in the ordinance may be located less than 500 feet from any residential zoning district, or less than 1,000 feet from any church, school, or any park adjacent to a residential district. In addition, no Sexually Oriented Business may be located within 1,000 feet of another Sexually Oriented Business. This ordinance requires the owners or operators of a Sexually Oriented Business to obtain a license from the City of Fridley. It prohibits persons who have been convicted of certain specified criminal activities from obtaining a license. The ordinance contains requirements for license application; procedures for application; procedures for suspension or revocation; and a prohibition against a transfer of the license. The ordinance also provides that any existing business which is located in an area not permitted by the ordinance shall be a nonconforming use and its nonconforming status shall be amortized over a three year period. � � � � Page 2-- Ordinance No. 965 III. Notice This Title and Summary have been published to clearly inform the public of the intent and effect of the City of Fridley's ordinance on the siting of Sexually oriented Businesses. A copy of the ordinance, in its entirety, is available for inspection by any person durinq regular business hours at the offices of the City Clerk of the City of Fridley, 6431 University Avenue N.E., Fridley, MN 55432. PASSED AND ADOPTED BY THE CITY COUNCIL OF THE CITY OF FRIDLEY THE 25TH DAY OF FEBRUARY, 1991. , � 4 � �� ,��,��' �,�.�G6,-ya,�i ��-�— WILLIAM . NEE - MAYOR ATTEST: l , ��1 1- �i�`, �� SHIRLEY A HAAPALA CITY CLERK Public Hearing: First Reading: Second Reading: Publication: February 11, 1991 February 11, 1991 February 25, 1991 March 6, 1991 ORDIIdANCE Nt7. 965 � ORDIN�,AidCE F�mnRT.TSE�1G A NEW C�PPER OF TFIE CITY OODE OF THE CPl'Y OF FR.IDLEY� CE�Fi'ER 127� F.rrrrrrFn ��SEXCT]�Y ORIEaTPID BUSII�SSFS�a The City Council of the City of Fridley does o�lain as follows: 127.01. PCTRFC76E AND II�TENT It is the rn�nr� of this o�linance to regulate Sexually Oriented Businesses to promote the health, safety, morals, and general welfare of the citizens of the City and to establish reasoru�ble arui unifoxm ��lations to: 1. Prevent additional criminal activity within the City; 2. Prevent deterioration of neighborhoods and its consequent advexse effect on real estate values of properties within the neighborhood; 3. To locate Sexually OYiented Businesses away frarn residential areas, schools, churches, and parks and playgrowxls; 4. Prevent concentration of Sexually Oriented Businesses within certain areas of the City. The provisions of this orrlinance have neither the pur�ose nor effect of �mposing � a limitation or restriction on the content of any conmwlicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this orrlinance to restrict or deny access by adults to se�ally oriented materials protected by the First Amerx�ent, or to deny access by distributors and exhibitors of sexually oriented entertau�ment to their intended market. 127.02. DEFINPPIONS 1. Adult Use. Any of the activities and businesses described belaa constitute "Sexually Oriented Businesses�� which are subject to the regulations of this oxtlinance, A. Adult Sook aixl/or Media Store. An establishment which excltxles minors or which has a substantial portion of its stock in trade or stock on display books, magazines, films, videotape, or other media which are characterized by their e�hasis on matter depicting, describing, or relatir�g to "speci£ied sexual activities" or "specified anatomical ar�a���. B. Adult CaUaret. An establishment which pravides dancirx3 or other live entextainment, if ' such establishment e.�ccludes minors by virtue of age or if such dancing or other live entertairnnent is distinguished or characterized by an emphasis on the performance, depiction or description of "specified sexiial activities" or "specified anatomical areas". � � � Page 2-- Ordinance No. 965 C. Adult Fstablishment. Any business which excludes minors or offers its patrons seivices, entertairmient, or the sale of inerchandise characterized by an emphasis on matter depicting, exposis�g, describirxJ, discussuig, or relating to specified sexual activities or specified anat�nical areas. Specifically included in the tPxm, but without limitation, are adult book ancl meclia stores, adult cabarets, adult hotels or motels, adult mini motion picture theaters, adult modeling studios, adult motion picture arcades, adult motion picture theaters, adult novelty businesses, and other adult establishments. D. Adult Hotel or Motel. Adult hotel or motel means a hotel or motel f specifically excluded from patronage and wherein which is distinyuished or characterized by depictirig, describing, or relating to specified specified anatcnnical areas. Adult Mini-Motion Picture Theater. ram which minors are material is pres�nted an es�hasis on matter 52X11d1 activities or (1) A theater in an enclor.,ed building, from which minors are eaccluded, with a capacity for less than 5D pezsons ttised for presenting motion pictures, including but not limited to film and videotape, having as a dominant theme material distinguished or characterized by an emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas". (2) Any business which presents motion pictures, fmm which m�nors are excluded, incl�ing fil� and videotapes, having as a daminant theme material distinguished or characterized by an emphasis on matter depicting, describing, or relatuxf to "specified sexual activities" or "specified anatomical areas", for viewing on the premises, including but not limited to private booths, viewing by means of coin operated or other mechanical devices, and the viewing of excerpts of motion pictures offered for sale or rent. F. Adult Modeling Studio. An establishment, which eaccludes minors, whose major business is the provision, to customers, of firn,rp malels wrio are so provided with the intent of providing sexual stimulation or sexual gxatification to such custamexs and who ex�gage in specified sexu�l activities or display specifier3 anatomical arpae wh�le beittg observe3, painte�l, painted upon, sketched, drawn, sculptured, photographed, or othenaise depicterl by such customers. G. Adult Motion Picture Arcade. Any place which eaccludes minors wherein coin or token operated or electronically, electrically, or �nically controlled or operated still or motor picture machines, projectors, or other image-producing devices �J � � Page 3— Orrlinance No. 965 are maintained to show images to iive or fewer pe�.sons per machine at any one time, and where the images so displayed are distinguished or characterized by an e�hasis on depicting or describing specified se�l activities or specified anat�tnical areas. H. Adult Motion Picture Theater. A theatex in an enclosed building, from which minors are excluded, with a capacity of 50 or more persons used reg�larly and routinely for presenting live entertairmlent or motion pictures, including but not limited to film and videotape, havirxf as a daminant theme material dist;*m,ished or characterized by an emphasis on matter depictuig, describing, or relating to "specified sexual activities" or "specified anatwnical areas" for obsexvation by patrons therein. I. Aclult Novelty Business. A businPSS, from which minors are excluded, which sells, offers to sell, or displays devices which sim�late hwnan genitals or devices which are designed for sexual stimulation. J K. Specified Anatomical Areas are any of the follow�.nq conditions: (1) Iess than completely and opaquely covered: (a) h�1n genitals, pubic region, or pubic hair; (b) buttock; and (c) female breast k�elow a point immediately ak�ove the top of the areola; and (2) Hwnan male genitals in a discernibly turgid state, even if opaquely covered. Specified Sa�cual Activities are any of the followuig conditions: (1) An act of sexual intes�course, nornial or peiverted, actual or simulated, including genital�enital, anal-genital, or oral- genital intercourc.�e, whether between htmian beings or between a himan beir�g and an animal. (2) Sad�[as�histic abuse, meanirig flagellation or torture by or upon a person who is nude or clad in undergarments or in a revealing castwne or the condition of being fettered, bound, or othenaise physically restricted on the part of one so clothed. (3) Masturbation or lewd exhibitions of the genitals includuxJ any explicit, close-up representation of a hiunan genital oxgan. (4) Physical contact or simulated physical contact with the clothed or wZClothed pubio areas or buttocks of a h��n male or female, or the breasts of a female, whether alone or between me�nbers of the same or opposite sex or between hwnvtis and animals in an act of apparent seacual stimulation or gratification. � � � Page 4-- Oxdinance No. 965 127.03. APPLSCATION OF TI-IIS ORDINANCE �ccept as in this o�linance specifically provided, no structure shall be erected, converted, enlan�ed, reconstructed, or altered, and no structure or land shall be used, for any rn�n� nor in any manner which is not in conformity with this o�linance. No Sexually Oriented Business shall ettgage in any activity or conduct or pei�nit any other person to engage in any activity or conduct in or about the establishment which is prohibited by any o�inance of the City of FYidley, the laws of the State of Minnesota, or the United States of America. Nothirig in this ordinance shall be construed as authorizing or �*m;tting corx3uct which is prohibited or ��lated by other statutes or oxdinances, including but not limited to statutes or ordinance prohibiting the exhibition, sale, or distribution of obscene material generally, or the e�iUition, sale, or distribution of specified materials to minors. �� ���� •• •:�un�. �. All Sexually Oriented Businesses which were lawfully in existence as of the effective date of this o�3inance and which were re�xlered nonconforming by the application of this oxdinance shall be subject to abatemeait within three (3) years of the date of enactment of this oxdinvice. 127. 05. IC)C'ATION iliiring the term of this ordinance, no Sexually Oriented Businesses shall be located less than 50D feet from any reside,ntial zoning district bounclary or site used for residential purposes, and less than 1,000 feet from any church site, from any school site, or frmn any park which is adjacent to propezty zoned residential. In acklition, no Sexually Oriented Business may be located within 1,000 feet of another Sexually Oriented Business. For purpases of this orc3inance, this distance shall be a horizonal measureme�it from the nearest existiny residential district boundary or site used for residential puxposes, church site, school site, park site, or another Sexually Oriented Business site to the nearest boundary of the proposed Se�cually Oriented Business site. 127.06. HOURS OF OPERATION No Sexually Oriented Business site shall be open to the public from the hours of 11:00 o'clock p.m. to 8:00 o'clock a.m. 127.07. OPERATION A. An establishment operating as a Sexually Oriented Business shall prevent off-site viewing of its merct�ndise, which if viewed by a minor, would be in violation of M.S. C7iapter 617 or other applicable Federal or State Statutes or local o�linances. B. All entrances to the business, with the exception of emen77ency fire exits which are not use�ble by patrons to enter the business, shall be visible fram a public right-of�ray. C. The layout of the display areas shall be designed so tl�at the management of the establishment and any law enforcement personnel � � � Page 5-- Ozdinance No. 965 G 127.08. irside the store can observe all patrons while they have access to any �andise offered for sale or viewing including but not lunited to books, magazines, photographs, video tapes, or any other material. Ill��++;nation of the premises exterior shall be adequate to observe the location and activities of all persons on the exterior premises. SIINS Signs for Sexually Oriented Husinesses shall comply with the City's sign on�inancz, ar�d in addition signs for Sexually Oriented Businesses shall not contain representational depictions of an adul.t nature or graphic descriptions of the adult theme of the opexation. 127.09. LSCINSES All establishments, including any business operating at the time this oxtlinance becomes effective, operating or intending to operate Sexually Oriented Business, shall apply for and obtain a license with the City of FYidley. 1. Licenses Required. A. A person is in violation of the City Code if he operates a Sexually Oriented Business without a valid license, issued by the City. B. An application for a license must be made on a foxtn provided by the City. Zhe application rwst be accompanied by a sketch or diagram shaaing the configuration of the premises, including a statement of total floor space occ�pie3 hy the business. The sketch or diagrem need not be professionally prepared but must 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 inches. C. The applicant must be qualified acco*�-�i� to the provisions of this chapter and the premises must be inspec.-ted and found to be in c�liance with the law by the health depari�ient, fire department, and building official. D. Application for license shall be made only on the forms provided by the City. Four (4) complete copies of the application shall be furnished to the office of the City Clerk containing the address ancl legal description of the property to be used; the names, adclresses, phone nwnbers of the owner, lessee, if any, and the operator or manager; the name, address, and phone nimil�er of two persons, who shall be residents of the State of Mtnnesota, and who may be called upon to attest to the applicant's, mai�ger's, or operator's chaxacter; whether the applicant, manager, or ope.rator has ever been convicted or a crime or offense other than a traffic offense and, if so, complete and accurate information as to the time, place, and nature of such crime or offense including the disposition thereof; the names and addresses of all creditors of the applicant, awner, lessee, or manager insofar as and regasding credit which has been exterxied for the purpo�,�es of constructing, equippinq, maintaining, operating, or furnishing or acquiring the premises, personal Page 6-- O�linance No. 965 1 effects, equipment, or anything incident to the establislunent, maintenance and operation of the business. If the application is made on behalf of a corporation, joint business venture, nar+naral�ip� or any legally constituted business association, it shall submit along with its application, accurate and �lete lx�s�nPZ records showing the ik�unes and addresses of all individuals having an interest in the business, includuig partners, officers, amexs, and creditozs funiishing credit for the establishment, acquisition, maintenance, and fun�ishinqs of said business arxl, in the case of a corporation, the names and adch-esses of all officers, general manaqers, m�embers oi the bo�d of directors as well as any creditors who have extended credit for the acquisition, maintenance, operation, or furnishing of the establishment includirig the purahase or acquisition of any items of peisonal property for use in said operation. All applicants shall furnish to the City, along with their applications, co�lete and accurate doc�nnetttation establishirig the interest of the applicant and any other pnsson having an interest in the premises upon which the building is proposed to be located or the furnishings thereof, personal property thereof, or the operation or maintenance thereof. Doc.wnentation shall be in the form of a lease, deed, contract for deed, moxtgage deed, mortgage ' credit arra�xJement, loan aar�,,,�nts, sec�irity agreements, and any other doamients establichim the interest of the applicant or any other person in the operation, acquisition, or maintei�ance of the enterprise. 2. Issuance of Lic�nse. A. The Public Safety Director shall reco�nend approval of the issuance of a license by the City to an applicant within 45 days after receipt of an application unless he finds one or more of the following to be true: (1) An applicant is w�der 18 years of age. (2) An applicant or an applicant's spouse is werdue in his payment to the City, County, or State of taxes, fees, fines, or penalties assessed against him or imposed upon him in relation to a Se�ally Oriented Bus�nPCC. (3) An a�licant has failed to provide inforniation reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form. (4) An applicant or an applicant's spouse has been convicted of a violation of a provision of this chapter, other than the ' offense of operating a Se�ci.lally Oriented Business without a license, within two yeazs iit¢nediately preceding the application. The fact that a coriviction is being appealed shall have no effect. � 1 1 Page 7-- O�linance No. 965 (5) An applicant is residing with a pe�.^son who has been denied a license by the City to �te a Sexually Oriented �sir�ess within the preceding 12 months, or residu�g with a person whase license to operate a Sexually Oriented Business has been revoked within the prec�.eding 12 months. (6) Zhe premises to be used for the Sexually Oriented Business have not been a�roved by the health departrnent, fire department, and the buildir�g official as being in �liance with a�licable laws and on3inances; such inspe�,-tions shall be cony�leted within thirty (30) days from the date the application was submitted, provided that the application contains all of the information �,;red by this on3inance. If the application is deficient, the in�ions shall be campleted within thirty (30) days fr'om the date the deficiency has been correc�ted. (7) The license fee required by this chapter has not been paid. (8) An applicant has been e�loyed in a Sexually Oriented Business in a managerial capacity within the preceding 12 months ancl has demonstrated that he is unable to operate or m'�nage a Sexually Oriented Business premises in a peaceful and law- abiding manner, thus necessitating action by law enforcement officers. (9) An applicant or an applicant's spouse has been convicted of a crime irivolving any of the following offenses: Any sex crimes as de£ined by Minnesota statutes 609.29 through 609.352 inclusive or as defined by any oitiinance or statute in conformity therewith; Any obscenity crime is defined by Minnesota statutes 617.23 through 617.299 iriclusive, or as defined by any orrlinance or statute in conformity therewith; for which: less than two years have elapsed since the date of conviction or the date of release fram confinement ;*�rsed for the corrviction, whichever is the later date, if the conviction is of a misdeaneanor offense; less tY�an five years have elapsed since the date of the last cor�viction or the date of release from confinesnent for the oo�iction, whichever is the later date, if the conviction is a felony offense; or less than five years have elap:�ed since the date of the last conviction or the date of release fram confinemezit for the last oo�iction, whichever is the later date, if the conviction are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24 month period. 1 � � Page 8-- Orriinance No. 965 B. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant's spouse. C. An applicant who has been cor�victed or whose spouse has been comricted of an offense listed in 5ubsection 127.09.02.(9) may qualify for a Sexually Oriented Business license only when the time period required by Subsection 127.09.02.(9) has elapsed. D. The licesvse, if granted, shall state on its face the name of the person or pet^sons to wham it is granted, the expiration date, and the address of the Sexually Oriented Business. The license shall be poste3 in a conspicuous place at or near the entrance to the Saxually Oriented Business so that it may be easily read at ariy time. E. The City Council shall act to apprwe or disapprave the license application within 120 days from the date the application was �.tm,itted, pmvided that the application contains all of the inforniation required by this o�luiance. If the application is deficient, the Council shall act on the application within 120 days from the date that the deficiency has been correctecl. F. Within 9D days after the decision by the Council, the applicant may appeal to the District Court by servux3 a notice upon the Mayor or Clerk of the Municipality. 3. Fees. An initial u�vestigation fee of $400.00 shall be chazyed at the time the application is filed; no part of this fee shall be ref�able. If after review of the application the license is appmved, the license holder shall pay $400.00 £or the initial license arid $400.00 per amm�n each ti� the license is renewed. 4 5 Inspec.�tion. A. An applicant or license shall nPrm;t representatives of the police depar�ttent, health depar�nent, fire department, and housing arxl building inspection division, to inspect the premises of a Se�lly Oriented Business for the puxpose of ensuring compliance with the law, at any time it is occupied or open for business. B. A petson who operatas a Sexually Oriented Business or his agent or employee cammits an offense if he refuses to permit a lawtul inspec,�tion of the premises by a representative of the police departxn�zt at any time it is occupied or open for business. C. 7.he provisions of this section do not apply to areas of an adult motel which are curretttly being rented by a customer for use as a permanent or te�orary hahitation. �piration of License. A. Fach license shall expire one year from the date of issuance and may be renewed only by � application as provided in Section 127.09.01. Application for renewal should be made at least 60 days � ' Page 9— O�linance No. 965 before the expiration date, and when made less than 60 days before the e�iration date, the expiration of the license will not be affected. B. When the City denies renewal of a licx�se, the applicant shall not be issued a license for one year fr�n the date o£ denial. If, subsequent to deni.al, the City fir�ds that the basis for denial of the renewal license has been oorrected or abated, the applicant may be gxanted a license if at least 90 days have elapsed since the date denial became final. 6. s„�ncion. The City may suspend a license for a period not to exceed 30 days if it determines that a licensee or an employee of a license has: A. B. C. D. E. Violated or is not in cxi�liance with any provisions of this chapter. Engaged in excessive use of alcoholic beverages while on the Se�cually �riented Business premises. Refused to allow an inspec.�tion of the Se�ally Oriented Business premises as authorized by this chapter. Knowingly re�+;tted gambling by any person on the Sexually Oriented Business premises. Demonstrated inability to operate or manage a Sexually Oriented Business in a peaceful and law-abidirig manner, thus necessitating action by law enforcement officers. A suspension by the City shall be proc�.eeded by written notice to the licensee and a public hearirig. The notice shall give at least 10 days notice of the time and place of the hearing and shall state the nature of the chan7es against the licensee. The notice may be setved upon the licensee persanally, or by leaving the same at the licensed business premises with the person in charqe thereof. 7. Revocation. A. B. The City may revoke a license if a cause of suspension in sec�tion 127.09.6 occurs and the license ha5 been suspeaxled within the preceding 12 months. The City shall revoke a license if it detexmines that: (1) A licensee qave false or misleadirx3 information in the material submitted to the City during the application process; � (2) A licensee or an employee has ]�owingly allowe�l possession, use, or sale of controlled substances on the premises; (3) A lices�see or an e�loyee has ]a�owingly allowed prostitution on the premises; � � ' Page 10 — O�linance No. 965 (4) A licensee or an employee ]maair�gly operated the Sexually Oriented Susiness during a period of time when the licensee's license was suspeixled; (5) A licensee has been convicted of an offense listed in Section 127.09.02.A.(9) for which the time period required in Section 127.09.02.A.(9) has not elapsed; (6) On two or more occasions within a 12 month periocl, a person or pexsons con¢nitted an offense occurring in or on the licensed premises of a crime listed in Section 127.09.02.A.(9) for which a conviction has been obtained, and the pezson or persons were employees of the Sexually Oriented Business at the time the offenses were c�¢nitted. (7) A licensee or an employee has ]mowingly allowed any act of sexual intercourse, sodomy, oxal copulation or masturLrztion to occur in or on the licensed premises. (8) A licensee is delinquent in payment to the County or State for hotel occv�icy taxes, ad valorem taxes, or sales taxes related to the Sexi�ally Oriented Business. C. The fact that a coriviction is being appealed shall have no effect on the revocation of the license. �. S�bsequettt B. (7) does not apply to adult motels as a grourxl for revokvig the licen_se unless the licensee or e�loyee ]aiowingly allowed the act of sexual intercourse, sodamy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view. E. Nhien the City revolces a licervse, the revocation shall continue for one year and the licensee shall not be issued a Sexually Oriented Husiness license for one year from the date revocation bec�ne effective. If, subsequent to revocation, the City finds tl�at the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsecl since the date the revocation became effective. If the license was revoked under Subsection 127.09.07.B.(5) an applicant may not be gr<uited another license until the appropriate n�r of yeazs required under Section 127.09.02.A.(9) has elapsed. F. A revocation by the City shall be proceeded by written notice to the licensee ancl a public hearing. The notice shall give at least 10 days notice of the time and place of the hearittg and shall state the nature of the chasges against the licensee. The notice may be served upon the licensee personally, or by leavirig the same at the licensed premises with the person in charge thereof. 8. Transfer of License. A licensee shall not transfer this 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. Page 11 -- On3isiance No. 965 � 127.10. SE�42F�BIL1'PY Evesy sec.�tion, pmvision, or part of this o�linance or any nrnrm;t issued to this ordinance is declared severable from evexy other section, provision, or pait thereof to the extent that if any section, provision, or �.t of this onlinance or any �nn;t issued pursuant to this ordinance shall be held invalid by a court of ca[[q�etent jurisdiction it shall not irrvalidate any other section, provision, or part thereof. PASSID AND ADOPPID BY THE CPPY CCXJNCIL OF Tf� CITY OF FRIDLEY TfIIS 25TH CIAY OF F�BRUARY, 1991. ��i�.� I ; �ti ��i/�--���`? WI J. NEE - MAYOR ATPFSP: ►.i►�� � ��1 �+ ' u• i' • ,• �. , Public IIearing: Februaxy 11, 1991 First Readirly: Febrvaxy 11, 1991 � Second Reading: FebYUary 25, 1991 Publication: March 6, 1991 ,