HomeMy WebLinkAbout2005-45Ordinance 2005-45
AN EMERGENCY ORDINANCE TO PROVIDE FOR THE REGULATION
AND PERMITTING OF SEXUALLY ORIENTED BUSINESSES.
WHEREAS, the Town Council of the Town of Pulaski (the "Council") fords that
sexually oriented businesses require special regulations and oversight in order to protect
and preserve the health, safety and welfaze of the patrons of such businesses as well as
the citizens of the Town of Pulaski (the "Town"); and
WHEREAS, the Council finds that sexually oriented businesses are frequently
used for unlawful sexual activities, including prostitution; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health
concern of the Town which demands reasonable regulation of sexually oriented
businesses in order to protect the health and well-being of the citizens; and
WHEREAS, there is convincing documented evidence that sexually oriented
businesses have a deleterious effect on both the existing businesses around them and the
surrounding residential areas adjacent to them, causing increased crime and urban blight
and the downgrading of property values and the quality of life in the adjacent area; and
WHEREAS, the Council desires to minimize and control these adverse effects
and thereby protect the health, safety, and welfare of the citizens of the Town; and
WHEREAS, the Council has determined that zoning criteria alone will not
adequately protect the health, safety, and general welfaze of the Town; and
WHEREAS, it is not the intent of the Council or this ordinance to suppress any
speech activities protected by the First Amendment of the United States Constitution or
the Constitution of Virginia, but to enact acontent-neutral ordinance which addresses the
secondary effects of sexually oriented business, and
WHEREAS, the Council has determined that an emergency exists requiring the
immediate adoption of this ordinance in order to protect the health;~afety and welfaze of
citizens of the Town.
IT IS HEREBY ORDAINED, by the Town Council of the Town of Pulaski, that the
following ordinance is adopted:
A. Definitions.
The following words, terms and phrases, when used in this ordinance shall have the
meaning ascribed to them in this section, except where the context clearly indicates a
different meaning:
Adult Arcade means any place to which the public is permitted or invited wherein coin-
operated, slug-operated, or for any form of consideration, electronically, electrically, or
mechanically controlled still or motion picture machines, projectors, video or laser disc
players, or other image-producing devices are maintained to show images to five or fewer
persons per machine at anyone time, and where the images so displayed are distinguished
or characterized by the depicting or describing of Specified Sexual Activities or Specified
Anatomical Areas.
Adult bookstore or adult video store means an establishment having as a substantial or
significant portion of its stock-in-trade books, magazines, other periodicals, videotapes,
computer disks, CD-ROMs, DVD-ROMs, virtual reality devices or similar media that are
distinguished or characterized by their emphasis on matter depicting, describing or
relating to Specified Sexual Activities or Specified Anatomical Areas.
Adult Lave Entertainment means it nightclub, bar, restaurant, or similar commercial
establishment which regularly features:
(a) persons who appear in a state of nudity or semi-nude; or
(b) live performances which are characterized by the exposure of Specific
Anatomical Areas or by Specified Sexual Activities; or
(c) films, motion pictures, video cassettes, slides or other photographic
reproductions which are characterized by the depiction or description of
Specified Sexual Activities or "Specified Anatomical Areas."
Adult Motel means a hotel, motel or similar commercial establishment which:
(a) offers accommodations to the public for any form of consideration;
provides patrons with closed-circuit television transmissions, films,
motion pictures, video cassettes, slides, or other photographic
reproductions which are characterized by the depiction or description of
Specified Sexual Activities or Specified Anatomical-Areas; and has a sign
visible from the public right of way which advertises the availability of
this adult type of photographic reproductions; or
(b) offers a sleeping room for rent for a period of time that is less than ten (10)
hours;
or
(c} allows a tenant or occupant of a sleeping room to sub-rent the room for a
period of time that is less than ten (10) hours.
Adult Novelty Store means an establishment having as a significant portion of its stock in
trade instruments, devices, or paraphernalia which are designed for use in connection
with specified sexual activities.
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Adult Movie Theater means a commercial establishment where, for any form of
consideration, films motion pictures, video cassettes, slides or similar photographic
reproductions are regularly shown which are characterized by the depiction or description
of Specified Sexual Activities or "specified anatomical areas."
Adult Theater means a theater, concert hall, auditorium, or similar commercial
establishments 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.
Employee means a person who performs any service on the premises of a sexually
oriented business or, a full-time, part-time or contract basis, whether or not the person is
denominated an employee, independent contractor, agent or otherwise and whether or not
said person is paid a salary, wage or other compensation by the operator of said business.
Employee does not include a person exclusively on the premises for repair or
maintenance of the premises or equipment on the premises, or for the delivery of goods to
the premises.
Escort means a person who, for consideration, agrees or offers to act as a companion,
guide, or date for another person, or who agrees or offers to privately model lingerie or to
privately perform a striptease for another person.
Escort Agency means a person or-business association who furnishes, offers to furnish, or
advertises to furnish escorts as one of its primary business purposes for a fee, tip, or other
consideration.
Establishment means and includes any of the following:
(a) the opening or commencement of any Sexually Oriented Business as new
business;
(b) the conversion of an existing business, whether or not a sexually oriented
business, to any Sexually Oriented Business;
(c) the additions of any Sexually Oriented Business to any other existing
sexually oriented business; or
(d} the relocation of any Sexually Oriented Business.
Nude Model Studio means any place where a person who appears semi-nude, in a state of
nudity, or who displays Specified Anatomical Areas and is provided to be observed,
sketched, drawn, painted, sculptured, photographed, or similarly depicted by other
persons who pay money or any form of consideration. Nude Model Studio shall not
include a proprietary school licensed by the State of Virginia or a college, junior college
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or university supported entirely or in part by public taxation; a private college or
university which maintains and operates educational program in which credits are
transferable to a college, junior college, ar university supported entirely or partly by
taxation; or in a structure:
(a) that has no sign visible from the exterior of the structure and no other
advertising that indicates a nude or semi-nude person is available for
viewing; and
(b) where in order to participate in a class a student must enroll at least three
days in advance of the class; and
(c) where no more than one nude or semi-nude model is on the premises at
anyone time.
Nudity or State of Nudity means the showing of the human male or female genitals, pubic
area, vulva, anus, anal cle$ or cleavage with less than a fully opaque covering, the
showing of the female breast with less than a fully opaque covering of any part of the
nipple, or the showing of the covered male genitals in a discernibly turgid state.
Permit means a person in whose Warne or permit to operate a Sexually Oriented Business
has been issued, as well as the individual instead 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.
Person means an individual, proprietorship, partnership, corporation, association, or other
legal entity.
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 human
female breast, but shall not include any portion of the cleavage of the human female
breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel
provided the areola is not exposed in whole or in part. -~
Sexual Encounter Center means a business or commercial enterprise that, as one of its
principal business purposes, offers for any form of consideration:
(a) physical contact in the form of wrestling or tumbling between persons of
the opposite sex; or
(b) activities between male and female persons and/or persons of the same sex
when one or more of the persons is in a state of nudity or semi-nude.
Sexually Oriented Business means an adult arcade, adult bookstore, adult novelty store,
adult video store, adult live entertainment, adult motel, adult movie theater, adult theater,
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escort agency, nude model studio, or sexual encounter center.
Specified Anatomical Areas means less than completely and opaquely covered human
genitals, pubic region, buttock, or female breast below a point immediately above the top
of the areola; or human male genitals in a discernibly turgid state, even if completely and
opaquely covered.
Specked Sexual Activities means human genitals in a state of sexual stimulation or
arousal; sexual intercourse or sodomy; or fondling or other erotic touching of human
genitals, pubic region, buttock or female breast, including masturbation.
Substantial Enlargement of a Sexually Oriented Business means the increase in floor
areas occupied by the business by the business by twenty-five percent (25%) or more, as
the floor areas exist as of the effective date of this ordinance.
B. Permit required from the Chief of Police
a. Application; issuance; duration; renewal.
(a) Every person either operating or desiring to operate a Sexually Oriented Business, in
addition to obtaining a business license from the Commissioner of the Revenue and proof
from the Department of Planning and Zoning that the location requirements set forth in
Section D below are satisfied, shall apply to the Chief of Police, or his designee, for a
permit to operate the Sexually Oriented Business. Each such application shall be
accompanied by a fee in the amount of $200.00.
(b) Information required on and with the permit application shall include, but not be
limited to, the following:
(1) The applicant's full name, age, sex, race, weight, height, hair and eye color,
address, telephone number, date and place of birth and social security number.
(2) Names and addresses of references.
(3) Whether the applicant has been convicted of any felony or misdemeanor and,
if so, the nature of the offense, when and where convicted and the penalty or
punishment assessed.
(4) Whether the applicant has been denied a permit or has had a permit revoked
under any statute or ordinance requiring a permit to operate Sexually Oriented
Business and, if so, when and where the denial or revocation occurred.
(5) Photograph and fingerprints of applicant.
(6) Name and address of the business for which a permit is sought.
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(7) A criminal records check of the applicant shall be provided by the applicant
with the application, along with the applicant's written authorization. To
investigate whether the information provided by the applicant is true.
(8) A criminal records check for each initial employee or proposed employee
must be provided by the applicant with the application, along with the employee
or proposed employee's written authorization to investigate whether the
information provided by the applicant is true. For each new employee a proposed
employee the applicant/permittee must submit a criminal records check for that
individual along with that person's written authorization to conduct further
investigation.
(9) The location of the proposed Sexually Oriented Business, including a legal
description of the property, street address and telephone number(s), if any.
(10) 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 it must be drawn to a designated scale or
drawn with marked dimension of the interior of the premises to an accuracy of
plus or minus six (6) inches.
(11) A current certificate and straight-line drawing prepazed within thirty (3 0)
days prior to application by a registered land surveyor depicting the property lines
and the structures containing any existing Sexually Oriented Businesses within
1,500 feet of the property to be certified; the property lines of any established
religious institution/synagogue, school, or public park or recreation azea within
2,500 feet of the property to be certified. For purposes of this Section, a use shall
be considered existing or established if it is inexistence at the time an application
is submitted.
(12) If an applicant wishes to operate a Sexually Oriented Business, other than an
adult motel, which shall exhibit on the premises, in a viewing room or booth of
less than one hundred fifty (150) squaze feet of floor space;`films, video cassettes,
other video reproductions, or live entertainment which depict Specified Sexual
Activities or Specified Anatomical Areas, then the applicant shall comply with the
application requirements set forth in Section E.
(13) Written declaration, dated and signed by the applicant, certifying that the
information contained in the application is true and correct.
(c) For a corporation, partnership or other legal entity, "applicant" includes each officer,
director, shareholder, partner or principal of the entity and the manager of the store.
(d) The Chief of Police or his designee shall act on the application within 60 days of the
filing of an application containing all the information required by this section.
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(e) The applicant shall be issued a permit unless the Town's investigation or the
information furnished by the applicant shows any of the following:
(1) The applicant has been convicted of a felony within the past five years;
(2) The applicant has been convicted of a crime of moral turpitude or a crime
involving the obscenity laws within the past three years;
(3) The applicant has been denied a permit or has had a permit revoked within the
past 12 months under any statute or ordinance requiring a permit to operate an
adult bookstore or adult video store; or
(4) Failure of the applicant's business to comply with the Town's business license,
zoning, building, plumbing, utility, health, electric or fire prevention codes, or
with any other applicable Town or state laws or regulations, including this
ordinance.
(f) The permit shall be valid for 12 months from the date thereof and may be renewed in
the same manner as it was initially obtained. The application fee far a renewal permit
shall be $100.00.No permit shall be transferable.
(g) Any changes in the ownership or principals of the business entity to which the permit
is issued will automatically make the permit void. Such changes shall be reported to the
Chief of Police or his designee, and a new application may be submitted for review.
b. Revocation o~ Permit.
(a) The Chief of Police or his designee may revoke any permit issued pursuant to this
article (i) for fraud, misrepresentation or any false statement contained in the application;
(ii) upon conviction of the applicant for any felony, crime involving moral turpitude, or
crime involving the obscenity laws after the permit is issued; (iii)for failure to comply
with the provisions of this article; or (iv) if the applicant's business fails to comply with
applicable Town or state laws or regulations, including this ordinance.
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(b) If the Chief of Police or his designee revokes a permit, he shall notify the permittee in
writing of such action, the reasons for the revocation, and the permittee's right to request
a hearing. To receive a hearing, the permittee must make a written hearing request which
must be received by the Chief of Police, or his designee, within ten days of the date of the
revocation notice. If a timely hearing request is not received by the Chief of Police, or his
designee, the decision shall be final. If a hearing is properly requested, it shall be held
within ten days from receipt of the hearing request. The hearing shall be presided over by
the Chief of Police or his designee. The permittee shall have the right to present evidence
and argument or to have counsel do so. Within a reasonable time after the hearing, the
Chief of Police, or his designee, shall render his decision which shall be final. The
permittee must discontinue operation of its business when the decision to revoke the
permit becomes final.
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(c) When protection of public health, safety or general welfare requires such action, the
Chief of Police, or his designee, may immediately revoke a permit issued under this
article by so stating in a written notice to the permittee. When action is taken pursuant to
this subsection, the permittee shall immediately discontinue operation of its business, but
shall have the right to a hearing as stated in subsection(b).
c. Availability of prompt judicial review.
After denial of an initial or renewal application or after revocation of a permit by the
Chief of Police or his designee, the applicant or pemuttee may seek prompt judicial
review of such administrative action in the circuit court of the county. Any such request
for judicial review shall be filed within 30 days of when the administrative action
becomes fmal.
C. Inspections.
An applicant or licensee shall permit representatives of the Chief of Police, Health
Department, Fire Department, Zoning Department, or other Town departments or
agencies to inspect the premises of a Sexually Oriented Business for the purpose of
ensuring compliance with the law, at any time it is occupied or open for business.
D. Location of Sexually Oriented Businesses.
a. Permitted Zoning Districts.
No Sexually oriented Business may be operated in any zoning district except those
districts designated B2.
b. Set-back Requirements.
No Sexually Oriented Business maybe operated with 1,000 feet of the following:
(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 schoals,
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;
(3j A boundary of any residential district as defined in the Town of Pulaski Zoning
Ordinance;
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(4) A public park or recreational azea which has been designate 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 similaz public land within the Town which is under control, operation, or
management of the Town park and recreation authorities.
(5) The property line of a lot devoted to a residential use as defined in the Town of
Pulaski Zoning Ordinance;
(6) An entertainment business which is oriented primarily toward children or family
entertainment; or
(7) A licensed premises, licensed pursuant to the alcoholic beverage control regulations
of the State;
(8) Any motel, hotel, or travel lodge; or
(9) Any truck stop or truck rest area.
c. Other Requirements.
No Sexually Oriented Business may be operated on any primary road or thoroughfare.
E. Regulations Pertaining to the Exhibition of Sexually Explicit Films, Videos or
Live Entertainment in Viewipg Rooms.
(A) A person who operates or causes to be operated a Sexually Oriented Business,
other than an adult motel, which exhibits on the premises in a viewing room of less than
one hundred fifty (150) square feet of floor space, a film, video cassette, live
entertainment, or other video reproduction which depicts specified sexual activities or
specified anatomical area, shall comply with the following requirements:
(1) Upon application for a Sexually Oriented Business permit, the application
shall be accompanied by a diagram of the premises showing a planwthereof specifying the
location of one or more managers 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 permit will be conspicuously
posted, if granted. A professionally prepazed 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 dimension of tall areas
of the interior of the premises to an accuracy of plus or minus six (6") inches: The Town
may waive the foregoing diagram for renewal applications if the applicant adopts a
diagram that was previously submitted and certified that the configuration of the premises
has not been altered since it was prepared.
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(2) The application shall be sworn to be true and correct by the applicant.
(3) No alteration in the configuration or location of a manger's station may be
made without the prior approval of the Town.
(4) It is the duty of the permittee of the premises to ensure that at least one
permitted employee is on duty and situated in each manager's station at all times that any
patron is present inside the premises.
(5) 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. 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.
(6) It shall be the duty of the permittee to ensure that the view area specified in
subsection
(7) 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 (1) of this Section.
(8) No viewing room may be occupied by more than one person at any time.
(9) 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 five (5.0) foot-candles as measured at the floor level.
(10) It shall be the duty of the permittee to ensure that the illumination described above is
maintained at all times that any patron is present in the premises.
(11} No permittee shall allow openings of any kind to exist between viewing rooms or
booths.
(12) There shall be no opening of any kind between viewing booths or rooms.
(13) The permittee shall, during each business day, regularly inspect the walls
between the viewing booths to determine if any opening or holes exist.
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(14) The permittee shall cause all floor coverings in viewing booths to be
nonporous, easily cleanable surfaces, with no rugs or carpeting.
(15) The permittee 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.
F. Regulations for Escort Agencies.
A. An escort agency shall not employ any person under the age of 18 years.
B. An escort agency shall not agree to act as an escort for any person under the age of
18 years.
G. Regulations for Nude Model Studios.
A. A nude model studio shall not employ any person under the age of 18years.
B. A nude model studio shall not place or permit a bed, sofa, or mattress in any room
on the premises, except that a sofa may be placed in a reception room open to the public.
H. Additional Regulations Concerning Public Nudity.
A. Operators of Sexually Oriented businesses shall not allow persons to appear in a
state of nudity or depict specified sexual activities.
B. Operators of Sexually Oriented Businesses shall not allow persons to appear in a
semi-nude condition unless the person is an employee who, while semi-nude, shall be at
least ten (10) feet from any patron or customer and on a stage at least two feet from the
floor.
C. Operators of Sexually Oriented Businesses shall not allow employees to solicit
any pay or gratuity from any patron or customer or for any patron ar customer to pay or
give any gratuity to any employee, while said employee is semi-nude in a sexually
oriented business.
D. Operators of Sexually Oriented Businesses shall not allow employees, while
semi-nude, to touch a customer or the clothing of a customer.
I. Prohibition Against Children In a Sexually Oriented Business.
Persons under the age of 18 years are not allowed on the premises of a sexually oriented
business.
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J. Hours Of Operation.
No sexually oriented business, except for an adult motel, may remain open at any time
between the hours of one o'clock (1:00) AM. and eight o'clock (8:00) AM. on weekdays
and Saturdays, and one o'clock (1:00) AM. and noon (12:00) P.M. on Sundays.
K. Exemptions.
A. It is a defense to prosecution under Section H that a person appearing in a state of
nudity did so in a modeling class operated:
(1) by a proprietary school, licensed by the State of Virginia;. a college, junior
college, or university supported entirely or partly by taxation;
(2) 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
(3) in a structure;
(a) wfiich has no sign visible from the exterior of the structure and no
other advertising that indicates a nude person is available for viewing; and
(b) where, in order to participate in a class a student must enroll at least three (3)
days in advance of the class; and
(c) where no more than one nude model is on the premises at anyone time.
L. Violations and Penalties.
A person who operates or causes to be operated a Sexually Oriented Business without a
valid permit or in violation of this ordinance is subject to a suit for injunction as well as
prosecution for criminal violations. Such violations shall be punishable by a fine of
$2,500.00 or imprisonment for a term not to exceed 12 months or both. Each day a
sexually oriented business so operates shall constitute a separate offense or violation.
M. Severability.
If any section, subsection, or clause of this ordinance shall be deemed to be
unconstitutional or otherwise invalid, the validity of the remaining sections, subsections,
and clauses shall not be affected.
N. Effective Date.
This ordinance is effective immediately and is hereby adopted this 20~' day of December,
2005 by recorded vote of the Town Council of the Town of Pulaski as follows:
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Jeffrey S. Worrell -Aye Lane R. Penn -Aye
Dan Talbert, Jr. -Aye John T. Bolen -Aye
Bettye H. Steger -Aye Joel B. Burchett, Jr. -Aye
ATTEST;
Patricia Cruise, Clerk of Councii
THE TOWN OF PULASKI, VIRGINIA
By:
Charles L. Wade, Mayor
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