ORDINANCE 2000-6-00

 REGULATING SEXUALLY ORIENTED BUSINESSES

 

WHEREAS, it is recognized that sexually oriented businesses, due to their nature, have serious objectionable operational characteristics, particularly when they are located in proximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and

WHEREAS, the Town Board of Odon wants to prevent these adverse effects and thereby protect the health, safety and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight; and

WHEREAS, it is not the intent of this ordinance to suppress any speech activities protected by the First Amendment, but to enact a content neutral ordinance that addresses the secondary effects of sexually oriented businesses as well as the heal problems associated with such businesses; and

 

SECTION I. Purpose and Findings

A. Purpose. It is the purpose of this ordinance to regulate sexually oriented businesses and related activities to promote the health, safety, morals, and general welfare of the citizens of the Town of Odon, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the Town. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented material s protected by the First Amendment, or to deny access by the distributors and exhibitors s of sexually oriented entertainment to their intended market Neither is it the intent n r effect of this ordinance to condone or legitimize the distribution of obscene materials.

B. Findings. See Exhibit A attached.

 

SECTION II. Definitions

See Exhibit B attached.

 

SECTION III. Classification

Sexually oriented businesses are classified as follows:

1.         adult arcades;

2.         adult bookstores or adult video stores;

3.         adult cabarets;

4.         adult motels;

5.         adult motion picture theaters;

6.         adult theaters;

7.         escort agencies;

8.         nude model studios; and

9.         sexual encounter centers.

 

SECTION IV. License Required

A.        It shall be unlawful:

1.         For any person to operate a sexually oriented business without valid sexually oriented business license issued by the Town Board of Odon 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 Town Board of Odon 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 sexually oriented business license must be made on a form provided by the Town Board of Odon. The application must be accompanied by a sketch or a diagram showing the configuration of the premises, including a statement f total floor space occupied by the business. The sketch or diagram need not e 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. All applicants for a license must be qualified according to the provisions of this ordinance. The application may request, and the applicant shall provide, such information (including fingerprints) as to enable the Town Board of Odon to determine whether the applicant meets the qualifications established under this ordinance. The applicant has an affirmative duty to supplement an application with new information received subsequent to the date the application was deemed completed.

D. If a person who wishes to own or operate a sexually oriented business is an individual, he must sign the application for a business license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a ten (10%) percent or greater interest in the business must sign the application for a business license as applicant. If a corporation is listed as owner of a sexually oriented business or as the entity that wishes to operate such a business, each individual having a ten (10%) percent or greater interest in the corporation must sign the application for a business license as applicant

E. Applications for a business license, whether original or renewal, must be made to the Town Board of Odon by the intended operator of the enterprise. Applications must be submitted to the office of the Town Board of Odon, or its designee, during regular working hours. Application forms shall be supplied by the Town Board of Odon.

F. Each application for a sexually oriented business license shall be accompanied by the following: See Exhibit C Attached.

G. Applications for an employee license to work and/or perform services in sexually oriented business, whether original or renewal, must be made to the Town Board of Odon by the person to whom the employee license shall issue. Each application for an employee license shall be accompanied by payment of the application fee in full. Application forms shall be supplied by the Town Board of Odon. Applications must be submitted to the office of the Town Board of Odon, or its designee, during regular working hours.

H. Attached to the application form for a license shall be the following: See Exhibit D Attached.

I. Every application for a license shall contain a statement under oath that:

1.         The applicant has personal knowledge of the information contain in the application, and that the information contained therein an furnished therewith is true and correct; and,

2.         The applicant has read the provisions of this article.

J. A separate application and business license shall be required for each sexual oriented business classification as set forth in Section III.

K. The fact that a person possesses other types of state or county permits and/or licenses does not exempt him from the requirement of obtaining a sexually oriented business or employee license.

 

SECTION V. Issuance of License

A. Upon the filing of an application for a sexually oriented business employee license, the Town Board of Odon shall issue a temporary license to said applicant. The application shall then be referred to the appropriate departments for investigation to be made on the information contained in the application. The application process shall be completed within thirty (30) days from the date of the completed application. After the investigation, the Town Board of Odon shall issue an employee license, unless it is determined by a preponderance of the evidence that one or more of the following findings is true:

1.         The applicant has failed to provide the information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form;

2.         The applicant is under the age of eighteen (18) years;

3.         The applicant has been convicted of a "specified criminal activity" as defined in Exhibit B, subsection (21) of this ordinance;

4.         The sexually oriented business employee license is to be used for employment in a business prohibited by local or state law, statute, rule, or regulation, or prohibited by a particular provision of this ordinance; or

5.         The applicant has had a sexually oriented business employee license revoked by the Town Board within two (2) years of the date of the current application.

If the sexually oriented business employee license is denied, the temporary license previously issued is immediately deemed null and void. Denial, suspension, o revocation of a license issued pursuant to this subsection shall be subject to appeal as set forth in subsection (I) of this Section.

B. A license issued pursuant to subsection (A) of this Section, if granted, shall state on its face the name of the person to whom it is granted, the expiration date, an the address of the sexually oriented business. The employee shall keep the license on hi or her person at all times while engaged in employment or performing services on the sexually oriented business premises so that said license may be available for inspection upon lawful request.

C. A license issued pursuant to subsection (A) of this Section shall be subject to annual renewal upon the written application of the applicant and a finding by the Town Board of Odon that the applicant has not been convicted of any "specified criminal activity" as defined in this ordinance, or committed any act during the existence of the previous license which would be grounds to deny the initial license application. The decision whether to renew a license shall be made within thirty (30) days of the completed application. The renewal of a license shall be subject to the fee as set forth in Section VI. Non‑‑renewal of a license shall be subject to appeal as set forth in subsection (L) of this Section.

D. If application is made for a sexually oriented business license, the Town Board of Odon shall approve or deny issuance of the license within forty‑five (45) days of receipt of the completed application. The Town Board of Odon shall issue a license to an applicant unless it is determined by a preponderance of the evidence that one or more of the following findings is true: See Exhibit E Attached.

E. A license issued pursuant to subsection (D) of this Section, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business, and the Section III classification for which the license is issued. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time.

F. The health department and fire department shall complete their certification that the premises are in compliance or not in compliance within twenty (20) days of receipt of the completed application by the Town Board of Odon. The certification shall be promptly presented to the Town Board of Odon.

G. A sexually oriented business license shall issue for only one classification, as set forth in Section III.

H. In the event that the Town Board of Odon determines that an applicant is not eligible for a sexually oriented business license, the applicant shall be given notice in writing of the reasons for the denial within forty five (45) days of the receipt of the completed application by the Town Board of Odon, provided that the applicant may request, in writing at any time before the notice is issued, that such period be extended for an additional period of not more than ten (10) days in order to make modifications necessary to comply with this ordinance.

I. A license issued pursuant to subsection (D) of this Section shall be subject to annual renewal upon the written application of the applicant and a finding by the Town Board of Odon that the applicant has not been convicted of any "specified criminal activity" as defined in this ordinance, or committed any act during the existence of the previous license which would be grounds to deny the initial license application. The decision whether to renew a license shall be made within forty‑five (45) days of the completed application. The renewal of a license shall be subject to the fee as set forth in Section VI.

 

SECTION VI. Fees

The annual fee for a sexually oriented business license, whether new or renewal, is Five Thousand ($5,000.00) Dollars. The annual fee for a sexually oriented business employee license, whether new or renewal, is Five Hundred ($500.00) Dollars. These fees are to be used to pay for the cost of the administration and enforcement of this ordinance.

 

SECTION VII. Expiration of License

A. Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in Section IV. Application for renewal should be made at least forty‑five (45) days before the expiration date. When application is made less than forty‑five (45) days before the expiration date, the expiration of the license will not be affected.

B. When the Town Board of Odon denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial.

 

SECTION VIII. Suspension

The Town Board of Odon shall suspend a license for a period not to exceed thirty (30) days if they determine that licensee or an employee of licensee has:

1.         violated or is not in compliance with any section of this ordinance;

2.            operated or performed services in a sexually oriented business while intoxicated by the use of alcoholic beverages or controlled substances;

3.         refused to allow prompt inspection of the sexually oriented business premises as authorized by this ordinance;

4.         with knowledge, permitted gambling by any person on the sexually oriented business premises.

 

SECTION IX. Revocation

A. The Town Board of Odon shall revoke a license if a cause of suspension in Section DC occurs and the license has been suspended within the preceding twelve (12) months.

B. The Town Board of Odon shall revoke a license if it determines that:

1.         a licensee gave false or misleading information in the material submitted during the application process;

2.         a licensee, or a person with whom the licensee is residing, was convicted of a "specified criminal activity" on a charge that was pending prior to the issuance of the license;

3.         a licensee has, with knowledge, permitted the possession, use, or sale of controlled substances on the premises;

4.         a licensee has, with knowledge, permitted the sale, use, or consumption of alcoholic beverages on the premises;

5.         a licensee has, with knowledge, permitted prostitution on the premises;

6.         a licensee has, with knowledge, operated the sexually oriented business during a period of time when the licensee's license was suspended;

7.         a licensee has, with knowledge, permitted any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur in or on the licensed premises;

8.         a licensee is delinquent in payment to the town, county or state for any taxes or fees;

9.                  a licensee has, with knowledge, permitted a person under eighteen (18) years of age to enter the establishment; or

10.       a licensee has attempted to sell his business license, or has sold, assigned, or transferred ownership or control of the sexually oriented business to a non-licensee of the establishment;

11.       a licensee has, with knowledge, permitted a person or persons to engage in specified sexual activities on the premises of the sexually oriented business

C. When the Town Board of Odon revokes a license, the revocation shall continue for one (1) year, and the licensee shall not be issued a sexually oriented business license for one (1) year from the date revocation became effective,

 

SECTION X. Judicial Review

After denial of an initial or renewal application by the Town Board of Odon, or suspension or revocation of a license by the Town Board of Odon, the applicant or licensee may seek prompt judicial review of such administrative action in any court of competent jurisdiction. The administrative action shall be promptly reviewed by the court.

 

SECTION XI. No Transfer of License

A licensee shall not transfer his/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 XII. Location Restrictions

Sexually oriented businesses shall be permitted provided that:

A. The sexually oriented business may not be operated within

1.         1,000 feet of a church, synagogue or regular place of religious worship;

2.         1,000 feet of a public or private elementary or secondary school;

3.         500 feet of a boundary of any residential district;

4.         500 feet of a public park;

5.         500 feet of a licensed day‑care facility with nine or more children;

6.         1,000 feet of an entertainment business that is oriented primarily towards children or family entertainment; or 1,000 feet of another sexually oriented business.

B. A sexually oriented business may not be operated in the same building, structure, or portion thereof, containing another sexually oriented business that is classified in accordance with Section III.

C. For the purpose of this ordinance, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church, synagogue, regular place of worship, or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot, or licensed day care center, or child or family entertainment business.

D. For purposes of subsection (C) of this section, the distance between any two sexually oriented business uses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

 

SECTION XIII. Exterior Portions of Sexually Oriented Businesses

A. It shall be unlawful for an owner or operator of a sexually oriented business to allow the merchandise or activities of the establishment to be visible from a point outside the establishment.

B. It shall be unlawful for the owner or operator of a sexually oriented business to allow the exterior portion of the sexually oriented business to have flashing lights, or any words, lettering, photographs, silhouettes, drawings, or pictorial representations of any manner except to the extent permitted by the provisions of this ordinance.

C. It shall be unlawful for the owner or operator of a sexually oriented business to allow exterior portions of the establishment to be painted any color other than a single achromatic color. This provision shall not apply to a sexually oriented business if the following conditions are met:

1.         The establishment is a part of a commercial multi‑unit center; and

2.         The exterior portions of each individual unit in the commercial multi‑unit center, including the exterior portions of the business, are painted the same color as one another or are painted in such a way so as to be a component of the overall architectural style or pattern of the commercial multi‑unit center.

D. Nothing in this article shall be construed to require the painting of an otherwise unpainted exterior portion of a sexually oriented business.

 

SECTION XIV. Signage

A. Notwithstanding any other town ordinance, code, or regulation to the contrary, it shall be unlawful for the operator of any sexually oriented business or any other person to erect, construct, or maintain any sign for the sexually oriented business other than the one (1) primary sign and one (1) secondary sign, as provided herein.

B. Primary signs shall have no more than two (2) display surfaces. Each such display surface shall:

1.         not contain any flashing lights;

2.         be a flat plane, rectangular in shape;

3.         not exceed seventy‑five (75) square feet in area; and

4.         not exceed ten (10) feet in height or ten (10) feet in length.

C. Primary signs shall contain no photographs, silhouettes, drawings or pictorial representations in any manner, and may contain only the name of the enterprise.

D. Each letter forming a word on a primary sign shall be of solid color, and each such letter shall be the same print‑type, size and color. The background behind such lettering on the display surface of a primary sign shall be of a uniform and solid color,

E. Secondary signs shall have only one (1) display surface. Such display surface shall:

1.         be a flat plane, rectangular in shape;

2.         not exceed twenty (20) square feet in area;

3.         not exceed five (5) feet in height and four (4) feet in width; and

4.         be affixed or attached to any wall or door of the enterprise.

F. The provisions of item (1) of subsection (B) and subsection (C) and (D) shall also apply to secondary signs.

 

SECTION XV. Sale, Use, or Consumption of Alcoholic Beverages Prohibited

A. The sale, use, or consumption of alcoholic beverages on the premises of a sexually oriented business is prohibited.

 

SECTION XVI. Persons Younger Than Eighteen Prohibited From Entry; Attendant Required

A. It shall be unlawful to allow a person who is younger than eighteen (18) years of age to enter or be on the premises of a sexually oriented business at any time the sexually oriented business is open for business.

B. It shall be the duty of the operator of each sexually oriented business to ensure that an attendant is stationed at each public entrance to the sexually oriented business at all times during such sexually oriented business' regular business hours. It shall be the duty of the attendant to prohibit any person under the age of eighteen (18) years from entering the sexually oriented business. It shall be presumed that an attendant knew a person was under the age of eighteen (18) unless such attendant asked for and was furnished:

1.         a valid operator's, commercial operator's, or chauffeur's driver's license; or

2.         a valid personal identification certificate issued by the State of Indiana reflecting that such person is eighteen (18) years of age or older.

 

SECTION XVII. Massages or Baths Administered by Person of Opposite Sex

It shall be unlawful for any sexually oriented business, regardless of whether in a public or private facility, to operate as a massage salon, massage parlor or any similar type business where any physical contact with the recipient of such services is provided by a person of the opposite sex.

 

SECTION XVIII. 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) A.M. and eight o'clock (8:00) A.M. on weekdays and Saturdays, and one o'clock (1:00) A.M. and twelve o'clock (12:00) P.M. on Sundays.

 

SECTION XIX. Regulations Pertaining to Exhibition of Sexually Explicit Films and Video

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, or other video reproduction, that depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements:

1.         Upon application for a sexually oriented business license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty‑two (32) square feet of floor area. The diagram shall also designate the place at which the business license will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six (6") inches. The Town Board of Odon may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since said diagram was prepared.

2.         The application shall be sworn to be true and correct by the applicant.

3.         No alteration in the configuration or location of a manager's station may be made without the prior approval of the Town Board of Odon or its designee.

4.         It is the duty of the owners and operator of the premises to ensure that at least one employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.

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 the entire 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 the entire 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 operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the view area specified in subsection (5) of this section remains unobstructed at all times. No doors, walls, partitions, curtains, merchandise, display racks, or other object(s) shall obstruct from view of the manager's station any portion of the premises to which patrons have access. It shall be the duty of the operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that no patron is permitted access to any area of the premises that has been designated as an area in which patrons will not be permitted, as designated in the application filed pursuant to subsection (1) of this section.

7.         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 candle as measured at the floor level.

8.         It shall be the duty of the operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that the illumination described above is maintained at all times that any patron is present in the premises.

9.         No viewing room or booth may be occupied by more than one person at any time.

10.       No opening of any kind shall exist between viewing rooms or booths.

11.       It shall be the duty of the operator, and it shall also be the duty of any agents and employees present in the premises, to ensure that no more than one person at a time occupies viewing booths or rooms, and to ensure that no person attempts to make an opening of any kind between the viewing booths or rooms.

12.       The operator of the sexually oriented business shall, each business day, inspect the walls between the viewing booths to determine if any openings or holes exist.

13.       The operator of the sexually oriented business shall cause all floor coverings in viewing booths to be nonporous, easily cleanable surfaces, with no rugs or carpeting.

14.       The operator of the sexually oriented business 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.

 

SECTION XX. Notices

A. Any notice required or permitted to be given by the Town Board of Odon or any other town office, division, department or other agency under this ordinance to any applicant, operator or owner of a sexually oriented business may be given either by personal delivery or by certified United States mail, postage prepaid, return receipt requested, addressed to the most recent address as specified in the application for the license, or any notice of address change that has been received by the Town Board of Odon. Notices mailed as above shall be deemed given upon their deposit in the United States mail. In the event that any notice given by mail is returned by the postal service, the Town Board of Odon, or its designee, shall cause it to be posted at the principal entrance to the establishment.

B. Any notice required or permitted to be given to the Town Board of Odon by any person under this ordinance shall not be deemed given until and unless it is received in the office of the Town Board of Odon.

C. It shall be the duty of each owner who is designated on the license application and each operator to furnish notice to the Town Board of Odon in writing of any change of residence or mailing address

 

SECTION XXI. Injunction

A person who operates or causes to be operated a sexually oriented business without a valid business license, or in violation of this ordinance, is subject to a suit for injunction as well as prosecution for ordinance violations. Each day a sexually oriented business so operates is a separate offense or violation and shall carry a civil penalty not to exceed $2,500 per offense or violation.

 

SECTION XXII. Separate

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 thereby

 

SECTION XXIII. Conflicting Ordinances Repealed

All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed.

 

SECTION XXIV. Effective Date

Two copies of this ordinance together with all exhibits shall be on file in the office of the Clerk‑Treasurer of the Town Board of Odon for public inspection, The ordinance will be published by insertion into the Town Board of Odon's Code of Ordinances. The ordinance shall take effect two weeks after the insertion of the ordinance in the Code.

 

Adopted by the Town Board of Odd n of Daviess County, Indiana, this 10^th day of July 2000.

Karla Beasley, President

Carlos Arney, Council Member

ATTEST:

Opal McDannald, Clerk‑Treasurer

 

EXHIBIT A

(B) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and in reports made available to the County Council, and on findings incorporated in the cases of County of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, 426 U.S. 50 (1976); and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); Arcara v. Cloud Books, Inc., 478 U.S. 697, (1986); California v. LaRue, 409 U.S. 109 (1972); lacobucci v. City of Newport, Ky, 479 U.S. 92 (1986); United States v. O'Brien, 391 U.S. 367 (1968); DLS Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir.1997); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir.1986); Hang On, Inc. v. City of Arlington„ 65 F.3d 1248 (5th Cir.1995); and South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir.1984), as well as studies conducted in other cities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and findings reported in the Final Report of the Attorney General's Commission on Pornography (1986), the Report of the Attorney General's Working Group On the Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), and statistics obtained from the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, the County Council finds that:

(1) Sexually oriented businesses lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make owners of these establishments responsible for the activities that occur on their premises.

(2) Crime statistics show that all types of crimes, especially sex‑related crimes, occur with more frequency in neighborhoods where sexually oriented businesses are located. See, e.g., Studies of the cities of Phoenix, Arizona; Indianapolis, Indiana; and Austin, Texas.

(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. See, e.g., California v. LaRue, 409 U.S. 109, 111 (1972); See also Final Report of the Attorney General's Commission on Pornography (1986) at 377.

(4) Offering and providing such booths and/or cubicles encourages such activities, which creates unhealthy conditions. See, e.g., Final Report of the Attorney General's Commission on Pornography (1986) at 376‑77.

(5) Persons frequent certain adult theaters, adult arcades, and other sexually oriented businesses, for the purpose of engaging in sex within the premises of such sexually oriented businesses. See, e.g., Arcara v. Cloud Books, Inc., 478 U.S. 697, 698 (1986); see also Final Report of the Attorney General's Commission on Pornography (1986) at 376‑77.

(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 virus infection (HIV‑AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections, and shigella infections. See, e.g., Study of Fort Meyers, Florida.

(7) For the period 1985 through 1995, the total number of reported cases of AIDS in the United States caused by the immunodeficiency virus (HIV) was 523,056. See, e.g., Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention.

(8) As of ,199, there have been reported cases of AIDS in the State of

(9) Since 1981 and to the present, there has been an increasing cumulative number of persons testing positive for HIV antibody test in the State of

(10) The total number of cases of early (less than one year) syphilis in the United States reported during the ten year period 1985‑1995 was 367,796. See, e.g., Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention.

(11) The number of cases of gonorrhea in the United States reported annually remains at a high level, with a total of 1,250,581 cases reported during the period 1993­1995. See, e.g. Statistics of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention.

(12) The Surgeon General of the United States in his report of October 22, 1986, advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug use, exposure to infected blood and blood components, and from an infected mother to her newborn.

(13) According to the best scientific evidence available, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. See, e.g. Findings of the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention.

(14) 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. See, e.g., Final Report of the Attorney General's Commission on Pornography (1986) at 377.

(15) Numerous studies and reports have determined that bodily fluids, including semen and urine, are found in the areas of sexually oriented businesses where persons view "adult" oriented films. See, e.g., Final Report of the Attorney General's Commission on Pornography (1986) at 377.

(16) Nude dancing in adult establishments encourages prostitution, increases sexual assaults, and attracts other criminal activity. See, e.g., Barnes v. Glen Theatre, 501 U.S. 560, 583 (1991).

(17) Nude dancing in adult establishments increases the likelihood of drug­ dealing and drug use. See, e.g., Key, Inc. v. Kitsap County, 793 F.2d 1053, 1056 (9th Cir.1986).

(18) The findings noted in paragraphs numbered (1) through (17) raise substantial governmental concerns.

(19) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns.

(20) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and operators of the sexually oriented businesses. Further, such licensing procedure will place a heretofore non­existent incentive on operators to see that the sexually oriented business is run in a manner consistent with the health, safety, and welfare of its patrons and employees, as well as the citizens of the County. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually oriented business, fully in possession and control of the premises and activities occurring therein.

(21) Removal of doors on adult booths and requiring sufficient lighting on the premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult establishments.

(22) 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 preventing the spread of sexually transmitted diseases and criminal activity.

(23) It is desirable, in the prevention of the spread of communicable diseases, to obtain a limited amount of information regarding certain employees who may engage in the conduct this ordinance is designed to prevent, or who are likely to be witnesses to such activity.

(24) The fact that an applicant for a sexually oriented business license has been convicted of a sex‑related crime leads to the rational assumption that the applicant may engage in that conduct in contravention to this ordinance.

(25) The barring of such individuals from operation or employment in sexually oriented businesses for a period of ten (10) years for a previous felony conviction serves as a deterrent to and prevents conduct which leads to the transmission of sexually transmitted diseases.

(26) The general welfare, health, morals, and safety of the citizens of this County will be promoted by the enactment of this ordinance.

EXHIBIT B

1. 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 maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas."

2. ADULT BOOKSTORE or ADULT VIDEO STORE means a commercial establishment that, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:

a.         books, magazines, periodicals or other printed matter, or photographs, films, motion picture, video cassettes or video reproductions, slides, or other visual representations that depict or describe "specified sexual activities" or "specified anatomical areas"; or

b.            instruments, devices, or paraphernalia that are designed for use in connection with "specified sexual activities."

A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as ADULT BOOKSTORE or ADULT VIDEO STORE. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an ADULT BOOKSTORE or ADULT VIDEO STORE so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that depict or describe "specified sexual activities" or "specified anatomical areas." A principal business purpose need not be a primary use of an establishment so long as it is a significant use based upon the visible inventory or commercial activity of the establishment.

3. ADULT CABARET means a nightclub, bar, restaurant, or similar commercial establishment that regularly features:

a.         persons who appear in a state of nudity or semi‑nudity; or

b.         live performances that are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or

c.         films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"; or

d.         persons who engage in erotic dancing or performances that are intended for the sexual interests or titillation of an audience or customers.

4. ADULT MOTEL means a hotel, motel or similar commercial establishment that

a.         offers accommodation to the public for any form of consideration and provides patrons with closed‑circuit television transmissions, films, motion pictures, videocassettes, slides, or other photographic reproductions that 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 that 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 twenty‑four (24) hours; or

c.         allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than twenty‑four (24) hours.

5. ADULT MOTION PICTURE THEATER means a commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

6. ADULT THEATER means a theater, concert hall, auditorium, or similar commercial establishment that regularly features persons who appear, in person, in a state of nudity and/or semi‑nudity, and/or live performances that are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities."

7. EMPLOYEE means a person who performs any service on the premises of a sexually oriented business on a full time, part time, contract basis, or independent basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise, and whether or not the 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, nor does "employee" include a person exclusively on the premises as a patron or customer.

8. 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.

9. 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.

10. ESTABLISHMENT means and includes any of the following:

a.         the opening or commencement of any sexually oriented business as a 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; or

e.         a sexually oriented business or premises on which the sexually oriented business is located.

11. LICENSED DAY‑CARE CENTER means a facility licensed by the State of Indiana, whether situated within the County or not, that provides care, training, education, custody, treatment or supervision for more than twelve (12) children under fourteen (14) years of age, where such children are not related by blood, marriage or adoption to the owner or operator of the facility, for less than twenty‑four (24) hours a day, regardless of whether or not the facility is operated for a profit or charges for the services it offers.

12. LICENSEE means a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a license; and in the case of an employee, a person in whose name a license has been issued authorizing employment in a sexually oriented business.

13. NUDE MODEL STUDIO means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons for consideration.

a.         Nude Model Studio shall not include a proprietary school licensed by the State of Indiana or a college, junior college or university supported entirely or in part by public taxation; a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or in a

19. SEXUALLY ORIENTED BUSINESS means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.

20. SPECIFIED ANATOMICAL AREAS means:

a.         the human male genitals in a discernibly turgid state, even if fully and opaquely covered;

b.         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.

21. SPECIFIED CRIMINAL ACTIVITY means any of the following offenses:

a.            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; sexual assault; molestation of a child; or any similar sex‑related offenses to those described above under the criminal or penal code of this state, other states, or other countries.

b.         for which:

1.         less than five (5) 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;

2.         less than ten (10) 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 felony offense;

3.         less than ten (10) years have elapsed since the date of the last conviction or the date of release from confinement imposed for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty‑four (24) month period;

c.         The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant.

22. SPECIFIED SEXUAL ACTIVITIES means and includes any of the following:

a.         the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts, whether covered or uncovered;

b.         sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;

c.            masturbation, actual or simulated; or

d.            excretory functions as part of or in connection with any of the activities set forth in (A) through (C) above.

23. SUBSTANTIAL ENLARGEMENT of a sexually oriented business means the increase in floor areas occupied by the business by more than twenty‑five (25%) percent, as the floor areas exist on July 1,1998.

24. TRANSFER OF OWNERSHIP OR CONTROL of a sexually oriented business means and includes any of the following:

a.         the sale, lease, or sublease of the business;

b.         the transfer of securities that form a controlling interest in the business, whether by sale, exchange, or similar means; or

c.         the establishment of a trust, gift, or other similar legal device that transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

EXHIBIT C

1. Payment of the application fee in full;

2. If the establishment is a State of Indiana corporation, a certified copy of the Articles of Incorporation, together with all amendments thereto;

3. If the establishment is a foreign corporation, a certified copy of the Certificate of Authority to transact business in this state, together with all amendments thereto;

4. If the establishment is a limited partnership formed under the laws of the State of Indiana, a certified copy of the Certificate of Limited Partnership, together with all amendments thereto;

5. If the establishment is a foreign limited partnership, a certified copy of the Certificate of Limited Partnership and the qualification documents, together with all amendments thereto;

6. Proof of the current fee ownership of the tract of land on which the establishment is to be situated in the form of a copy of the recorded deed;

7. If the persons identified as the fee owner(s) of the tract of land in item (6) is not also the owner of the sexually oriented business, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the owners) or proposed owner(s) of the sexually oriented business to have or obtain the use and possession of the tract or portion thereof that is to be used for the sexually oriented business;