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Zoning Commission Packet 2012 10-24-12
AGENDA ZONING COMMISSION MEETING Wednesday, October 24, 2012 7:00 P.M. City Hall Conference Room 800 Game Farm Road 1. Welcome 2. Roll Call 3. Citizen’s Comments 4. Approval of August 22, 2012 meeting minutes 5. Old Business: a) Update of the CMAP Local Technical Assistance (LTA) Grant Application • CMAP 2012 LTA Project Selection Results 6. New Business: a) Review of Revised Table of Contents b) Discussion of Regulating Adult-Oriented Businesses 7. Adjournment 8. Next meeting date: November 28, 2012 (?) United City of Yorkville 800 Game Farm Road Yorkville, Illinois 60560 Telephone: 630-553-4350 Fax: 630-553-7575 ZONING COMMISSION MEETING Wednesday, June 22, 2011 7:00 p.m. Yorkville City Hall Conference Room 800 Game Farm Road, Yorkville, IL 60560 Committee Members in Attendance: Jeff Baker Gary Neyer Greg Millen Mike Crouch - Chairman City Officials in Attendance: Krysti Barksdale-Noble, Community Development Director Meeting Called to Order The meeting was called to order at 7:01 p.m. and Mr. Crouch welcomed everyone. Roll Call Roll call was taken. A quorum was established. Citizen’s Comments There was one guest in attendance, Mr. Jason Engberg. Previous Minutes Mr. Baker moved to accept the July 25, 2011 minutes and it was seconded by Mr. Neyer. There was no discussion, corrections or additions so a vote to accept was made, unanimously accepted and the motion was carried. Mr. Crouch then turned the meeting over to Ms. Noble to cover Old Business. Old Business: Ms. Noble said as an update to the last meeting there were a few revisions on text and some items related to how the Conservation Development Criteria Standards was being done: - The term “collective gardening” was removed and replaced with “collective gardening organized by the subdivision or a home owner’s association” in order to clarify that it was not for the entire community. - The next item revised was the Density Bonus Table Standards. For the most part, they were in line with comments regarding how quantifying was done regarding terms such as “innovative” and “exceeding beyond,” so they are now more specific. Case in point is the “wetland restoration and/or enhancement performed which exceeds the quantitative standards established in the United City of Yorkville’s Wetland Protection Regulation for Water Quality and Stormwater Management Benefits (Ord.2008-01) as determined by the City Engineer.” - There was also a change to the “detention/retention basins which have the functionality to meet the minimum quantitative stormwater runoff requirements and also provides one (1) or more of the following innovations” is in lieu of ‘innovative detention basin design.’ Mr. Crouch would like a clear definition of the word ‘significant.’ Mr. Neyer asked Ms. Noble to walk the committee through a 1,000 acre scenario; what is their non-bonus density; a pre-bonus density; and a post-bonus density. In the June memo, on the side, Ms Noble said there was an example of how she walked the committee through the calculations. Starting with the gross area (200 acres in example), then subtract the existing ROW (5 acres MAX); wetlands (15 acres) and that becomes your buildable area (180 acres). Then take 15% for stormwater management and 10% for roads (of buildable). Mr. Neyer asked if they were using fractions of an acre so they agreed to round it to the nearest 10th of an acre (4500 sq. ft. or 137.7) to get the net site area per the Parks Planner. That would mean there could be 275.4 dwelling units per acre on 200 gross acres; or make the ratio 1.3 acre pre-bonus. Mr. Neyer then asked about the parks and schools. Ms. Noble said anything above the open space requirement by 10% will get a bonus. Mr. Crouch asked whether or not all properties North and South of the river should even be developed? Ms. Noble said they should not and Mr. Crouch agreed. Mr. Baker mentioned there have been several properties that he did not want to pass that the City did; but, by law, the City has to allow them to build on the property. Ms. Noble said the bonuses could be used as a tool to get more if the commission just works the numbers out right. Mr. Baker said they first need to get rid of subtracting: 1) the wetlands because it’s probably already in your development and the 15 acres are already used somewhere else; and 2) stormwater. The reason is because if you’re using wetlands, stormwater is a moot point because it’s already being done. Ms. Noble suggested it all be open space; in other words, growth area minus all right-of-way (required wetlands, stormwater, roads). After much discussion, it was agreed this chapter was unnecessary. If a developer wanted to develop a marginal property, they would need to bring it to the committee as a P.U.D. Mr. Neyer asked if there was any give-and-take when it came to wiping out formerly buildable lots. Ms. Noble said it hasn’t happened yet, but she’s sure it will. Mr. Crouch asked Ms. Noble if she could research and find out what the trade-offs were like in the case of Grand Reserve. He knows what was done in the case of school district, but what was done in terms of the water tower (which is specifically a City issue)? If there was some understanding of what took place for any of the fire stations, etc., that would be worthwhile. Ms. Noble said it would be in the Plan Council minutes. Mr. Neyer said the expectations are known ahead of time when it comes to the Park Board and the school district. The committee knows there are strict formulas and they apply to everybody. What doesn’t apply to everybody would be situations such as, “Where do we put a water tower; weather sirens; police department; fire department; Public Works facility (maintenance yard)?; etc. Ms Noble said that’s where the Municipal Building fee comes into play. Mr. Neyer asked if there was a trade-off given for the taking of that property. Ms. Noble said an annexation agreement is the only opportunity for the City to take acreage for one of the above purposes that is not a school and is not a park (eminent domain or condemnation). Ms. Noble will look into the concept of public building credit. Mr. Millen asked if it’s a functional property (baseball fields, paths, etc.), can they be open up more and the developer can get more lots and density to try for the 20%, or does it matter if it is wetlands or prairie lands or parks in order to get more density? Are they all considered one big “bundle?” Mr. Neyer said the bonus isn’t big enough to economically justify doing it and the developer won’t do it. At this point, Ms. Noble stated, and the committee agreed, that the entire Conservation Design District (CDD) is scrapped. She then asked if the committee wanted her to look into opportunities to have transferable development rights; such as, if you are required to put in some type of public building or facility that you can use that area and transfer it to some other percentile. Mr. Crouch brought back the point that the City would be well-served to do some research and find out how this was addressed in other places and find out what is an equitable trade-off. He would like to avoid negotiations because he doesn’t think that’s a good way for the City to foster a relationship with developers. He feels a sense of ‘fairness’ should be part of the process. Ms. Noble said as far as the Zoning Ordinance, she didn’t think they could address it here. She felt the Plan Commission could bring it up because even staff could not initiate it; she would need a Plan Commissioner to initiate it. If they would like her to go in that direction to research, she could then definitely do that. In summary, Chapter 11 is out. Mr. Crouch then suggested they move on to CMAP. Ms. Noble confirmed they put in a grant application for technical assistance in writing these ordinances – there have been approximately 88 communities that have applied. She received a 40-minute phone interview and found out they have made it to the next step. She won’t know until October whether or not their project has been chosen. Mr. Baker made a motion to adjourn; it was moved and seconded and agreed by all. The meeting was adjourned at 8:23pm. Minutes respectfully submitted by: Bonnie Olsem 09.17.12 Staff has prepared the information below for discussion at our regularly scheduled meeting on October 24, 2012: Old Business Item: a) Update of Local Technical Assistance (LTA) Program Application Grant – CMAP As you may recall, the City applied for a Local Technical Assistance (LTA) grant through the Chicago Metropolitan Agency for Planning (CMAP) seeking staff support in completing the remaining specialized chapters of the zoning ordinance update. As previously noted, there were 88 total applications submitted to CMAP from various cities, counties and governmental agencies across the area. Of those applications, CMAP staff reviewed and conducted telephone interviews with the applicants and made project recommendations to their board on October 10, 2012 (see attached memo). Unfortunately, the United City of Yorkville’s request for assistance with our zoning ordinance update was not selected for technical assistance in this year’s grant cycle . We will continue to move forward with the comprehensive revision of our ordinance using in-house staff and should additional grants or other programs become available, we will definitely consider pursuing them. New Business Items: a) Review of Revised Table of Contents Attached is a revised Table of Contents for the proposed updated Zoning Ordinance. As you can see, the Zoning Commission has reviewed and recommend for approval Chapters 1 – 11F and unanimously decided at the August 22, 2012 meeting to discard Chapter 11G CDD, Conservation Design District. It is also important to note that Chapter 8, Planned Unit Developments, has already been adopted by the City Council this past summer as Ordinance No. 2012-19 and is now a part of the current City Municipal Code. With that being said, there are only eleven (11) chapters remaining (Chapters 12- 22) for consideration by the Zoning Commission before our formal presentation to the public for inspection at an open house for feedback, and subsequent recommendation to the City Council for approval during a series of public hearing meetings. Staff Comments: It is our intention to utilize the Community Development Intern over the winter months to prepare drafts of as many of the remaining chapters for Zoning Commission review should we decide to hiatus until after the holiday season. However, if it is the consensus of the Zoning Commission to continue to meet in November and December, staff will direct the Community Development Intern to focus on Chapters 12 & 13, the Business and Manufacturing Districts. b) Discussion of Regulating Adult-Oriented Businesses Staff has attached some background materials for the Zoning Commission to review regarding the various forms of regulating adult-oriented businesses. The materials include the following: Memorandum To: Zoning Ordinance Commission From: Krysti J. Barksdale-Noble, Community Development Director CC: Bart Olson, City Administrator Date: October 19, 2012 Subject: Zoning Ordinance Update – Old & New Business Items “Adult Entertainment and the Secondary Effects Doctrine – How a Zoning regulation May Affect First Amendment Freedoms” by David L. Hudson Jr. Madison County, Illinois – Ordinance regulating adult businesses within the unincorporated areas of Madison County. Ohio Model Ordinance for regulating adult sexually oriented businesses. Oswego, Illinois Zoning Ordinance – section of ordinance regulating adult uses. Wheeling, Illinois Zoning Ordinance – section of ordinance regulating adult entertainment establishments. Kane County, Illinois Zoning Ordinance – portion of ordinance defining “adult businesses”, “adult entertainment center”, “adults-only”, etc… Joliet, Illinois Zoning Ordinance – portion of ordinance regulating sexually oriented businesses. The Newport Daily Express article “Derby Planners Approve Adult Store Zoning Regs” June 26, 2012. Staff Comments: Staff is seeking feedback from the Zoning Commission on the following topics for discussion: How should we define “adult-oriented business”? Are there other terms associated with this use that may also require defining? Should adult-oriented businesses be permitted or special uses? In which zoning districts should adult-oriented businesses be allowed? O-Office District, Business Districts (B-1, B-2, B-3, B-4), Manufacturing Districts (M-1, M-2)? One, some or all of the above? Should there be a minimum distance for adult-oriented uses from other incompatible land uses? Is so what? Ex. 500 feet; 1,000 feet; 1,750 feet. Setback from what other land uses? Ex. Residential, Schools (Public and Private), Churches, and Parks. In addition to a minimum distance to nearby incompatible land uses, should there be a minimum property line setback for adult-oriented land uses? Front Yard, Side Yard, Corner Side Yard, Rear Yard? Should we have special signage regulations for adult-oriented businesses? Should restrictions be placed on hours of operation for adult-oriented businesses? Should regulations with regard off-street parking and lighting requirements be specific for adult-oriented businesses? Agenda Item No. 12.0 MEMORANDUM To: CMAP Board MPO Policy Committee From: Bob Dean, Deputy Executive Director for Local Planning Date: October 3, 2012 Re: Project Evaluation and Selection Attached to this memo is a report that describes staff recommendations for the selection of projects for CMAP’s Local Technical Assistance (LTA) and Community Planning programs. This report is identical to the draft that was circulated earlier in September. The projects recommended for selection will be brought to the CMAP Board and the MPO Policy Committee at their joint meeting on October 10. The Local Coordinating Committee will meet immediately prior to the Board/MPO meeting for a final discussion of recommended projects, and will be asked to recommend approval of the LTA and Community Planning programs. ACTION REQUESTED: Approval of the Local Technical Assistance (LTA) and Community Planning programs 1 | Pag e Local Technical Assistance and Community Planning Programs: Recommendations for Selection October 3, 2012 Since the adoption of GO TO 2040, CMAP has established two programs, the Community Planning program and the Local Technical Assistance (LTA) program, to direct resources to communities to pursue planning work that helps to implement GO TO 2040. The Community Planning program provides grants and consultant assistance, and the LTA program provides staff assistance and small grants, both for the purpose of assisting local governments with planning activities. During the most recent call for projects, which ended on August 1, over 100 applications were received from 88 different applicants. A list of all applications received, and some basic statistics concerning the applications, is available in this August 8 memo to the CMAP Board and committees. The CMAP Board will be asked to approve the staff recommendations for both the Community Planning and the LTA programs at their meeting on October 10. The MPO Policy Committee, which meets concurrently with the Board, will also be asked to recommend approval of the Community Planning program; the LTA program does not require a formal MPO Policy Committee vote to be approved. Prior to the Board and MPO Policy Committee meeting, the Local Coordinating Committee will be asked to recommend approval by these groups. The purpose of this memo is to present CMAP staff recommendations for the treatment of each application received. It is divided into four sections: Staff recommendations for projects to be funded through the Community Planning program. Staff recommendations for projects to be undertaken through the LTA program. Basic statistics concerning the projects recommended for selection. Full lists of projects that are recommended and not recommended. COMMUNITY PLANNING PROGRAM RECO MMENDATIONS Staff recommends funding seven projects that submitted Community Planning program applications. These projects are of two major types. First, four projects are integrated land use and transportation plans. These include comprehensive plans in Calumet City, North Aurora, and Prospect Heights, as well as a community plan for the Garfield Park neighborhood submitted by the Chicago Department of Housing and Economic Development (DHED). The other three recommended projects are focused on bicycle and pedestrian improvements, and include 2 | Pag e plans in Evanston and Niles, as well as a multi-jurisdictional project submitted by the Northwest Municipal Conference. (Please note that the Niles plan will be linked with another project in the same community that was selected for technical assistance during an earlier round but has not yet begun.) Two projects that submitted applications to the Community Planning program also submitted identical applications to the LTA program. These projects, submitted by the NAACP and the University of Illinois at Chicago, are better fits in the LTA program and have been considered for technical assistance within that program. The disposition of these projects is described in the section on LTA staff recommendations. Four other projects that submitted Community Planning program applications are not recommended for funding. These include applications from Chicago DHED, the Chicago Department of Transportation (CDOT), Glenwood, and Midlothian. Brief reasons for not recommending these for funding are below: Chicago Back of the Yards Corridor Plan. Chicago DHED also submitted a neighborhood plan for the Back of the Yards neighborhood, but indicated that their priority was the Garfield Park project. In order to provide opportunities to additional municipalities, the Back of the Yards project is not recommended for funding. Garfield Ridge Community Plan. This land use plan examines the impacts of a transportation project that is primarily in the communities of Bedford Park and Burbank, but CDOT did not demonstrate coordination with these municipalities. Glenwood Pedestrian, Bicycle, and Transit Plan. The community recently completed a TOD plan funded by the RTA. The application frequently references SouthEast Service, but CMAP’s priority is investment in the existing transit system. Midlothian Streetscape and Implementation Plan. It does not appear that further planning work in the community is necessary, but rather that the recommendations of previous plans should be implemented through engineering and capital investment. The total cost of the projects recommended for funding is estimated at approximately $600,000. This leaves approximately $250,000 unexpended from the FY 13 budget for grants for local projects. Staff recommends that this funding be reserved and allocated to suitable LTA projects as the year progresses and projects become more fully scoped. Any project funded in this way will have significant transportation components and be eligible for UWP funds. LTA RECOMMENDATIONS In total, 40 new projects are recommended to be pursued through the LTA program. These projects have one or more of the following characteristics: they involve multijurisdictional coordination; they involve partnerships with external organizations; they are in communities that have limited resources for planning; and/or they address specific CMAP priorities like 3 | Pag e parking or water resources. Some recommended projects have several of these characteristics, and all have at least one. The following narrative describes the recommended LTA projects, organized by these characteristics. MULTIJURISDICTIONAL P ROJECTS CMAP was clear in the application process that multijurisdictional projects would be prioritized during the selection process, and applicants responded by submitting many good proposals that crossed municipal boundaries. Five multijurisdictional groups submitted applications for “Homes for a Changing Region” housing studies, and four of these are recommended to be pursued. These include one in DuPage, including Addison, Bensenville, Villa Park, and Wood Dale; two in Kane, including Carpentersville, East Dundee, Elgin, and West Dundee as well as Batavia, Geneva, North Aurora, and St. Charles; and one in Lake, including North Chicago, Park City, Waukegan, and Zion. A fifth “Homes” project was submitted by the Lake County Community Foundation, but did not demonstrate the full buy-in of the six communities that it represented. One of the largest projects submitted was from the Lake County Department of Transportation, and involved a corridor land use plan for the proposed IL 53/120 improvements in central Lake County. Approximately 20 municipalities are part of this project. CMAP’s role in this project would be to manage a major consultant contract to conduct this land use plan, rather than to do so entirely through the LTA program; this project is contingent on identifying funding for the consultant contract. Several other applications for land use planning were submitted by communities in the IL 53/120 corridor, but these are more appropriate in future years, after the corridor-wide land use plan has been completed. These projects, which are not recommended to be pursued at the present time, include applications from Hawthorn Woods, Long Grove, and Libertyville and Mundelein (in a joint application). While not specifically referencing the IL 53/120 project, a joint application from Gurnee and Waukegan is also not recommended due to the inclusion of these communities in the IL 53/120 corridor and other projects already ongoing in Waukegan. Two applicants – the Ferson-Otter Creek Watershed Coalition and the Silver and Sleepy Hollow Creeks Watershed Coalition – submitted proposals to implement multijurisdictional watershed plans that were completed by CMAP last year. These are both recommended to be pursued, as is the drought preparedness plan submitted by the Northwest Water Planning Alliance, which includes many counties and municipalities in the groundwater-dependent western part of the region. Several other projects with multijurisdictional elements are also recommended. Staff assistance is recommended for Hoffman Estates, which led a broad coalition of applicants to request assistance with workforce development in the I-90 corridor. Lincolnwood submitted a proposal to address retail vacancy on a stretch of Devon Avenue that separates Lincolnwood from Chicago; this will involve both municipalities. Finally, the Cook County Forest Preserve District proposal involves trail counts within the forest preserves and an examination of connections to nearby municipalities, and is recommended to be pursued. 4 | Pag e PROJECTS WITH EXTERNAL PARTNERSHIPS In the first year of the LTA program, CMAP has learned that projects that involve partner ships with external groups – whether government or nongovernmental – are often the most successful. Therefore, selecting projects with strong partnerships was a priority in developing LTA project recommendations. The projects below are not a full list of those involving partners; many other emerge as projects are further developed. A number of projects in Chicago involve innovative partnerships between government and nongovernmental groups. These include the Pilsen-Little Village Land Use Strategy, proposed by the Chicago Department of Housing and Economic Development; a quality of life plan for Chinatown sponsored by the Coalition for a Better Chinese American Community; and a multimodal transportation plan submitted by the University of Illinois at Chicago, which will be pursued by enlisting the university’s planning students and staff as active partners. There were a number of other projects in Chicago that are not recommended to be pursued, because they did not demonstrate as much support from the City as these recommended projects. Through the recently-formed Kane County Planning Cooperative, a number of projects will be receiving staff support from the county’s planning department. In addition to some already named above (the “Homes” projects in Kane and the Ferson-Otter Creek watershed plan implementation), recommended projects include a comprehensive plan for Big Rock and a bicycle and pedestrian plan for South Elgin. These projects will require less staff time on CMAP’s part because of Kane County’s commitment of resources. Finally, two regional projects submitted by nonprofit partners are recommended; these are the Metropolitan Mayors Caucus proposal involving immigrant integration in suburban communities, and the Openlands proposal to address local food issues. PROJECTS IN HIGH-NEED COMMUNITIES The LTA program is meant to provide resources to communities that have few resources to devote to planning, so “need” – defined as an index that combines median income, property and sales tax base, and size – is used in the project selection recommendations. The highest- need communities in the region are typically small, lower-income suburbs with small tax bases. Applicants with higher levels of need are typically good candidates for products like comprehensive plans, zoning ordinance revisions, or other basic planning documents. Comprehensive plans are recommended in the high-need communities of Chicago Heights, Cicero, Dixmoor, Lyons, Markham, and Summit. Other high-need communities receiving assistance include Park Forest, for a zoning update; the Lan-Oak Park District, for a parks master plan; Worth, for a planning priorities report (which will help to define an LTA project for a future application); and Berwyn, for a downtown parking study. Other high-need communities have already been described earlier in this summary, including those projects in Chicago and the “Homes” project in Waukegan and its neighbors. 5 | Pag e OTHER PROJECTS THAT ALIGN WITH CMAP PRIORITIES A fourth category of projects includes those that are in topical areas that align well with GO TO 2040 and CMAP’s interests. Many of the sponsors of these projects are lower in the spectrum of community need, but have innovative or unique ideas expressed in their proposals. Several projects involve water, which has been a priority for CMAP since the adoption of Water 2050. Recommended water-related projects include those submitted by the DuPage Water Commission, Illinois Department of Natural Resources, and Lake Zurich, in addition to the watershed implementation projects and the Northwest Water Planning Alliance proposal already mentioned. CMAP recently produced a model toolkit on parking, and solicited parking-related LTA projects this year; those recommended to be pursued include projects submitted by Hinsdale and Wicker Park-Bucktown Special Service Area, in addition to the Berwyn project noted earlier. Also in the area of transportation, LTA proposals that support major capital projects are priorities, and the comprehensive plan for Bensenville is recommended for this reason. Several communities submitted interesting projects in the area of economic development or infill, and are recommended. These include Oswego, with an economic development plan; Franklin Park, for an industrial areas plan; Will County, for an inventory of brownfield sites; and others already noted. Finally, several projects on other topics align well with CMAP’s interests and are recommended. The Cook County Department of Planning requested assistance with preparing an update to their Consolidated Plan to make this document both more useful and more consistent with GO TO 2040. A request for assistance from Seven Generations Ahead related to sustainability data aligns well with CMAP’s priorities in improving access to information. Finally, the proposal from the Lake County Forest Preserve District regarding local food is recommended to be pursued as a continuation of the ongoing LTA project in that area, rather than as a stand-alone new project. PROJECTS THAT ARE NOT RECOMMENDED Projects were considered lower priority for LTA assistance for a number of reasons, described further below. Priority for assistance was given to communities that had lower incomes or were smaller in size, meaning that more prosperous or larger communities were less likely to receive assistance. In particular, lower-need communities that requested basic planning assistance, like comprehensive plans or zoning ordinances, were not likely to be recommended; lower-need communities generally had to present an innovative project or one that aligned well with a specific CMAP priority in order to be recommended. This is the single most common factor that separated recommended projects from those that are not recommended. 6 | Pag e A number of applicants that are currently receiving assistance asked for additional projects; these include DuPage County, Kane County, and the Chicago Housing Authority. These current projects are in their early stages, and should be advanced further before a second phase is begun. Similarly, several projects that are logical next steps of the IL 53/120 corridor plan should be reconsidered in a future year. Some projects were good concepts but would benefit from further development by the project sponsor. Most of the unsuccessful applicants within Chicago are encouraged to expand the geographic scope of their projects and work more closely with City staff on project development. Several applicants requested assistance with stormwater planning activities. These are clearly important, but CMAP currently does not have stormwater planning expertise on staff and is not able to use its grant-related funding sources for stormwater projects. Where possible, these applicants will be directed to other groups that might be able to help them. One project, in Palos Heights, was related to the implementation of a previously- adopted plan funded by the RTA; this type of activity is a priority of the RTA and these projects will be referred to them for consideration in a future year. In general, applicants that submitted multiple projects had only one project recommended to be pursued. The additional projects will be suggested to be reconsidered as later phases. (In exceptions to this, two projects sponsored by Chicago DHED and Cook County have been recommended.) Finally, some projects were simply not a good fit for the local technical assistance program, as they focused on regional-level research, were focused on unconstrained major capital projects, did not demonstrate the full support of affected local governments, or did not demonstrate alignment with the recommendations of GO TO 2040. A full list of applicants that are not recommended to receive assistance is included at the end of this document. STATISTICS OF RECOMMENDED PROJECTS In the following section, basic statistics are provided for the distribution of projects by geography and community need. GEOGRAPHI C DISTRIBUTION In the design of the local technical assistance program, an effort was made to identify projects to be pursued in many different parts of the region. In the following table, the distribution of higher priority projects by geography is summarized. Projects may be reported in multiple geographies, and these are noted below the table. A map showing the distribution of projects is included later in this document. 7 | Pag e Ch i c a g o Co o k t o t a l N a n d N W Co o k W C o o k SW C o o k S C o o k Co l l a r t o t a l Du P a g e Ka n e Ke n d a l l La k e Mc H e n r y Wi l l No s p e c i f i c ge o g r a p h y To t a l Selected applicants 5 21 7 6 1 6 20 4 8 2 6 3 2 2 45 Total applicants 11 33 11 8 3 10 46 10 14 4 13 8 4 3 88 Recommended projects included in multiple geographies are: Lincolnwood Devon Avenue corridor study (Chicago and NW Cook) Northwest Water Planning Alliance (NW Cook, Kane, Kendall, Lake, and McHenry) Openlands local food project (Kane, Lake, and McHenry) Park Forest zoning update (S Cook and Will) Cook County projects are only shown in the “Cook total” column COMMUNITY NEED An important factor in the review process was the need of the community for assistance. The program is meant to prioritize projects in communities that have limited resources and would not have the ability to undertake the project without CMAP’s assistance. This is also consistent with the stated goal of HUD’s grant to focus on providing assistance to disadvantaged groups, including lower-income residents, residents of public housing, and minorities, among others. Communities were divided into five categories based on these factors, ranging from “very high” to “low” need. Many communities in the “low” need category submitted excellent projects and could still certainly benefit from assistance, but priority was given to communities with lower median incomes and tax bases, as well as to smaller municipalities. The following table and chart summarize the distribution of recommended projects by community need. Ve r y h i g h ne e d Hi g h n e e d Mo d e r a t e l y hi g h n e e d Mo d e r a t e ne e d Lo w n e e d To t a l Selected applicants 10 6 6 7 16 45 Total applicants 13 11 11 17 36 88 8 | Pag e Beyond raw numbers of projects selected, average project size is also important to consider. Projects in higher-need communities tend to be larger planning projects, such as comprehensive plans or zoning ordinance updates. In lower need communities, projects are often more specialized and lower in size. Based on initial estimates of size, selected projects in communities with high or very high need average $100,000 in value; those in communities with moderate or moderately high need are around $70,000 in value; and those in low-need communities are valued at an average of $40,000. As this demonstrates, recommended projects were identified from communities of all types, but those from higher need communities were more likely to be selected, and also include a greater average commitment of resources than lower need communities. PROJECT LISTING Recommended projects: Sponsor Project Addison Homes for a Changing Region Bensenville comprehensive plan (additional request for zoning update is not recommended) Berwyn parking study Big Rock comprehensive plan Calumet City comprehensive plan (additional request for stormwater plan is not recommended) Carpentersville Homes for a Changing Region Chicago Heights comprehensive plan (additional request for water conservation is not recommended) Chicago Department of Housing and Economic Development Pilsen-Little Village plan Chicago Department of Housing and Economic Development Garfield Park plan (additional request for neighborhood plan in Back of the Yards is not recommended) 0 5 10 15 20 25 Very high High Mod-high Moderate Low Recommended Not recommended 9 | Pag e Sponsor Project Cicero comprehensive plan (additional request for sewer system plan is not recommended) Coalition for a Better Chinese American Community Chinatown community plan Cook County two projects: consolidated plan; trails plan (additional requests for sustainability plan and comprehensive plan are not recommended) Dixmoor comprehensive plan (additional various requests are not recommended) DuPage Water Commission water conservation Evanston bicycle and pedestrian plan Ferson-Otter Creek Watershed Coalition watershed plan implementation Franklin Park industrial areas plan Geneva Homes for a Changing Region Hinsdale parking study Hoffman Estates workforce development plan Illinois Department of Natural Resources water loss reduction strategy Lake County Department of Transportation IL 53 corridor plan Lake County Forest Preserve District public land local food plan** Lake Zurich water conservation Lan-Oak Park District parks master plan Lincolnwood Devon Avenue corridor plan (additional request for comprehensive plan is not recommended) Lyons comprehensive plan Markham comprehensive plan (additional request for parks plan is not recommended) Metropolitan Mayors Caucus immigrant integration study Niles bicycle and pedestrian plan** North Aurora comprehensive plan Northwest Water Planning Alliance water conservation Northwest Municipal Conference bicycle and pedestrian plan Openlands local food policy Oswego economic development plan Park Forest zoning update Prospect Heights comprehensive plan Seven Generations Ahead sustainability data Silver and Sleepy Hollow Creeks Watershed Coalition watershed plan implementation South Elgin bicycle and pedestrian plan Summit comprehensive plan University of Illinois at Chicago multimodal transportation plan Waukegan Homes for a Changing Region Wicker Park-Bucktown Special Service Area parking study Will County brownfield inventory Worth planning priorities report 10 | Pag e Shaded cells indicate grant or consultant assistance through Community Planning program ** Request will be pursued as part of current LTA program, rather than stand-alone project. Not recommended: Sponsor Project Barrington Hills environmental data Bartlett zoning update Broadview parking study Bull Valley zoning update; strategic plan Campton Hills zoning update; bicycle-pedestrian plan Carol Stream comprehensive plan Chicago Department of Transportation Garfield Ridge plan; public space use policy Chicago Housing Authority Altgeld Gardens plan; Washington Park plan City of Homes Cermak corridor plan Crete comprehensive plan DuPage County Department of Economic Development and Planning unincorporated corridor plan Frankfort Park District parks master plan Gilberts comprehensive plan Glen Ellyn bicycle-pedestrian plan Glencoe Park District parks master plan Glenview environmental planning Glenwood transportation plan; stormwater plan Gurnee and Waukegan* Grand Avenue corridor plan Hawthorn Woods* comprehensive plan Huntley form-based code Kane County Department of Transportation Randall Road multimodal plan Lake County Community Foundation Homes for a Changing Region Lake Forest Consortium sustainability plan Lakeside Development Corporation green infrastructure plan Lakewood comprehensive plan Libertyville and Mundelein* unincorporated area plan Long Grove* IL 53 impact analysis Matteson comprehensive plan; zoning update McHenry County Stormwater Management Commission stormwater plan Midlothian subarea plan Montgomery comprehensive plan Morton Arboretum regional trees initiative NAACP local food and land use plan Oak Brook housing plan Palos Heights Harlem Avenue overlay district Palos Park water conservation and rate study Schaumburg sustainability plan St. Charles* watershed plan Sustainable Englewood cultural plan 11 | Pag e Sponsor Project Victory Heights Community Organization neighborhood plan Villa Park* corridor plan Winthrop Harbor comprehensive plan Yorkville zoning update Shaded cells indicate request for grant or consultant assistance through Community Planning program * Indicates that the project sponsor was also a participant in a successful multi-jurisdictional application October 10, 2012 Via email: knoble@yorkville.il.us Krysti J. Barksdale-Noble, AICP Community Development Director United City of Yorkville 800 Game Farm Road Yorkville, IL 60560 Dear Ms. Barksdale-Noble: Thank you for your recent application to the Local Technical Assistance (LTA) program. The number of requests clearly demonstrated the need for planning assistance in our region. We received over 100 project proposals from municipalities, counties, interjurisdictional groups, and nongovernmental organizations, and the application process was quite competitive. We regret to inform you that we will not be able to commit resources to your project request at this time. We recognize that your request for assistance in updating your zoning code is valuable, but due to the competitive nature of the application process, we can only assist a fraction of the communities who submitted good projects. Please contact Pete Saunders at psaunders@cmap.illinois.gov or 312-386-8654 if you have any questions or would like further guidance in preparing or refining an application for the next call for projects. Sincerely, Robert M. Dean Deputy Executive Director for Local Planning TITLE 10 - ZONING Table of Contents Subject Chapter Zoning Purpose and Interpretation ........................................................................................................................... 1 Rules and Definitions ............................................................................................................................................... 2 General Zoning Provisions ....................................................................................................................................... 3 Zoning Administration and Enforcement ................................................................................................................. 4 Zoning Districts and Maps .......................................................................................................................................... 5 Permitted and Special Uses ......................................................................................................................................... 6 Dimensional and Bulk Requirements ........................................................................................................................ 7 Planned Unit Developments ........................................................................................................................................ 8 Zoning Districts.......................................................................................................................................................9-13 A-1, Agricultural District ......................................................................................................................................... 9 OS, Open Space District ......................................................................................................................................... 10 OS-1, Open Space (Passive) District ............................................................................................................... 10A OS-2, Open Space (Recreational) District ....................................................................................................... 10B Residential Districts ............................................................................................................................................... 11 E-1, Estate District ........................................................................................................................................... 11A R-1, Single-Family Suburban Residence District ............................................................................................ 11B R-2, Single-Family Traditional Residence District .......................................................................................... 11C R-2 Duplex, Two-Family Attached Residence District ................................................................................... 11D R-3, Multi-Family Attached Residence District .............................................................................................. 11E R-4, General Multi-Family Residence District................................................................................................. 11F CDD, Conservation Design District ................................................................................................................. 11G Business Districts ................................................................................................................................................... 12 O, Office District ............................................................................................................................................. 12A B-1, Limited Business District ......................................................................................................................... 12B B-2, General Business District ......................................................................................................................... 12C B-3, Service Business District ......................................................................................................................... 12D B-4, Business District ...................................................................................................................................... 12E Manufacturing Districts .......................................................................................................................................... 13 M-1, Limited Manufacturing District .............................................................................................................. 13A M-2, General Manufacturing District .............................................................................................................. 13B Adult-Oriented Uses .................................................................................................................................................. 14 Historic Downtown Overlay District ........................................................................................................................ 15 Route 47 Overlay District ........................................................................................................................................ 16 Nonconforming Buildings, Structures, and Uses .................................................................................................... 17 Off Street Parking and Loading ............................................................................................................................... 18 Fences, Screens and Walls ........................................................................................................................................ 19 Signs ............................................................................................................................................................................ 20 Telecommunication Towers, Antennas and Facilities ............................................................................................ 21 Alternative Energy Systems ...................................................................................................................................... 22 Rooftop Wind Energy Systems ........................................................................................................................... 22A Small Wind Energy Systems ............................................................................................................................... 22B Solar Energy Systems.......................................................................................................................................... 22C Comment [ KNoble1]: Chapters 1-11F already reviewed and recommended for approval by the Zoning Commission. Comment [ KNoble2]: Chapter 11G was decided by the Zoning Commission at the 8-22-12 meeting to be discarded from the ordinance update. Comment [ KNoble3]: Chapters 12-22 need to be reviewed & recommended by the Zoning Commission. Adult Entertainment and the Secondary- effects Doctrine How a zoning regulation may affect First Amendment freedoms BY DAVID L. HUDSON JR. F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION VOL. 2, NO. 1 MAY 2002 David Hudson is research attorney at the First Amendment Center. Hudson writes for the Freedom Forum Online and for other publications devoted to First Amendment issues. Hudson is a First Amendment contributing editor for the American Bar Association’s Preview of United States Supreme Court Cases. His articles have been published in The National Law Journal,the ABA Journal and the Tennessee Bar Journal. He is a member of the First Amendment Lawyers Association. Hudson graduated from Duke University in 1990 and obtained a law degree from Vanderbilt University School of Law in 1994. He has been licensed to practice law in the state of Tennessee since 1994. After working as a judicial law clerk, Hudson joined the First Amendment Center in 1995. He also teaches classes in legal research, torts, ethics and employment rights at Southeastern Career College. Hudson has written books for young people on the Bill of Rights and the Fourteenth Amendment. He currently is working on a project on student free-speech issues. Media appearances include interviews in The New York Times, The Washington Post, USA TODAY, The National Law Journal and on CNN.com. The author would like to thank constitutional law attorney Stanley N. Adcock for his guidance and expertise on this report. A FIRST AMENDMENT CENTER PUBLICATION 1 F IRST R EPORTS Adult Entertainment and the Secondary-effects Doctrine How a zoning regulation may affect First Amendment freedoms BY DAVID L. HUDSON JR. Unlikely though it may seem, the fate of First Amendment freedoms is irrevocably connected to the ongoing struggle between purveyors of adult entertainment and defenders of public decency. Supporters of the billion-dollar adult-entertainment industry argue that nude dancing contains the same elements of eroticism found in so-called “legitimate” theater and dance and therefore deserves no less First Amendment protection than more mainstream forms of expression. City officials counter that adult businesses lead to crime and lower property values by demeaning the quality of communities in which they locate; municipalities must be empowered to prevent blight and red- light districts, they say. City officials wield an array of restrictions that can be levied on adult businesses. These include restrictions on zoning, licensing, clothing, hours of operation and patron-performer buffer zones, to name just a few. When adult-club owners fight these regulations in the courts, cities are prone to pass new legislation, leading to more lawsuits and more regulations. The cycle has resulted in the development of a substantial body of First Amendment case law and doctrine, which serves to address the continuing tension between governmental efforts to regulate the adult-entertainment industry and the industry’s attempts to claim First Amendment protections. Even the U.S. Supreme Court has waded into the exotic-entertainment issue several times during the past two years, with cases involving a Pennsylvania nude- dancing club, an adult bookstore in Wisconsin, and two adult bookstores in California. Many people do not understand why the removal of clothes by a dancer is a form of protected expression, but in fact the First Amendment protects many forms of controversial expression. A review of basic First Amendment principles and the history of erotic dance shows why the U.S. Supreme Court has ruled that regulation of nude dancing triggers First Amendment protections. Traditionally, municipalities have responded to the proliferation of nude-dancing businesses by using zoning powers to stifle the industry’s expansion. City officials have argued that these zoning restrictions are a reasonable means of land-use regulation. This has led to judicial creation of the secondary-effects doctrine, which allows government officials greater leeway to regulate nude dancing if they can show they are combating the allegedly harmful side effects (secondary effects) of adult businesses. The Supreme Court has extended the secondary-effects rationale beyond its original application in zoning cases, and city officials now use the law to justify myriad restrictions on the adult-business industry, including restrictions on the content of exotic performances. Many free-speech advocates claim that the secondary-effects doctrine has allowed municipal officials an easy path to censorship.1 I.How First Amendment doctrine applies to disrobing dancers Basic First Amendment principles that relate to nude dancing are: •The First Amendment protects more than political speech and the expression of lofty ideas. •The First Amendment protects not only verbal communication but also certain forms of expressive conduct. •The First Amendment protects expression that some people may find offensive or disagreeable. F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 2 •The First Amendment protects sexual expression as long as it does not meet the legal definition of obscenity. THE FIRST AMENDMENT PROTECTS MORE THAN POLITICAL SPEECH There’s no question that protecting political speech is one of the core values of the First Amendment. Ensuring the right of the American people to criticize government was clearly a major concern of the founding fathers, many of whom had suffered for their criticism of the Stamp Act and other repressive policies by the British government. Many of the early free-speech cases in the 20th century involved political dissidents, such as socialists and anarchists who advocated the overthrow of the U.S. government. However, the First Amendment protects far more than political speech. In 1948 the Supreme Court reversed the conviction of a New York bookseller who sold magazines that contained fictional stories of murder and bloodshed. In a ringing passage supporting freedom of speech, the Court wrote that it did not accept the argument that “the constitutional protection for a free press applies only to the exposition of ideas.” In an oft-cited passage, the majority declared: The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature.2 The First Amendment serves to protect speech on a wide variety of nonpolitical topics, including the arts and entertainment. In 1952 the Court extended protection to movies, dismissing the notion that all movies could be banned because of their negative influence on children.3 The Court has extended free-speech protection to such different types of speech as literature, art, music, plays, commercial advertising, television and several types of expressive conduct. The First Amendment serves as the blueprint for personal liberty. To restrict freedom of speech only to political matters would severely narrow the scope of liberty. A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 3 THE FIRST AMENDMENT PROTECTS MORE THAN VERBAL COMMUNICATION The most common understanding of “speech” is verbal communication. But people can communicate a message in various ways without verbalizing their thoughts. We communicate through the clothes we wear (or don’t wear), the signs we display, the bumper stickers we place on our vehicles and through certain types of conduct in which we engage. In 1931 the U.S. Supreme Court struck down a California law that criminalized the display of red flags as an “emblem of opposition to organized government.” The high court reasoned that government must allow “the opportunity for free political discussion” as a “fundamental principle of our constitutional system.”4 The courts have determined that certain forms of conduct, called expressive conduct or symbolic speech, are entitled to First Amendment protection. In 1968 the Supreme Court considered the criminal case of David Paul O’Brien, who was convicted of violating a 1965 federal law prohibiting the knowing mutilation of a draft card. He argued that the law violated his First Amendment rights, because he had burned his draft card as a political protest against the Vietnam War and the mandatory draft system. The government contended that O’Brien was punished for his unlawful conduct, not for his speech. In United States v. O’Brien,the Court developed a four-part test for conduct that contains speech and non-speech elements.5 Under the O’Brien test, a regulation passes constitutional muster if: •The government has the power to pass the regulation. •The regulation furthers an important or substantial governmental interest. •The government interest is unrelated to the suppression of free expression. •The incidental restriction on alleged First Amendment freedoms is no greater than necessary. F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 4 The Court affirmed O’Brien’s conviction, finding that the law was not designed to suppress free expression but to further important governmental interests in times of war, such as quick induction. The next year, the Court ruled that several public school students in Iowa had engaged in speech when they wore black armbands to school to protest U.S. involvement in the Vietnam War.6 The high court distinguished O’Brien, in part because the school authorities singled out black armbands for punishment. The Court did not apply the O’Brien test because the no- armband rule was intended to suppress free expression, unlike the federal law that prohibited all draft-card burning. These decisions establish that the First Amendment applies to far more than an oration or literary text. People can communicate messages through their conduct alone. THE FIRST AMENDMENT PROTECTS EXPRESSION THAT MANY PEOPLE MAY FIND OFFENSIVE OR DISAGREEABLE The First Amendment, as part of the Bill of Rights, is counter-majoritarian. It protects the viewpoints of those in the minority from being oppressed by what Frenchman Alexis de Tocqueville termed the “tyranny of the majority.”7 The First Amendment serves a particular purpose in safeguarding viewpoints and expression that challenge the existing state of affairs. Most of us engage in daily discourse in our personal lives without government intrusion. Throughout American history, however, many unpopular groups have challenged conventions and traditional social mores to try to effect change. Abolitionists, Jehovah’s Witnesses, woman suffragists, socialists, Communists, civil-rights advocates and anti-abortion protesters have faced considerable public opposition and penalties for their speech. For most of the 20th century, the Supreme Court recognized that controversial speech is the type of expression most in need of protection. In 1948 the Court overturned the breach-of-the-peace conviction of ex-priest Arthur Terminiello, who gave a racist speech denouncing Jews and African- Americans. The jury instructions at Terminiello’s trial defined breach of the A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 5 peace as speech which “stirs the public to anger, invites dispute, brings about a condition of unrest or creates a disturbance.” Justice William Douglas responded that the purpose of speech is to invite dispute: “It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”8 Perhaps the best example of unpopular or offensive speech was highlighted in the flag-burning case of Texas v. Johnson.9 When Gregory “Joey” Johnson burned an American flag outside the Republican National Convention in Dallas in 1984, authorities charged him with violating a Texas law that prohibited desecration of the flag if the perpetrator knew the act would “seriously offend one or more persons likely to observe or discover his actions.” Johnson was convicted and sentenced to one year in jail and a $2,000 fine. The U.S. Supreme Court reversed the conviction by a 5-4 vote. In oft-cited language, Justice William Brennan wrote: “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”10 As recently as 2000, Justice Anthony Kennedy wrote in U.S. v. Playboy Entertainment Group that the “history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.”11 THE FIRST AMENDMENT PROTECTS SEXUAL EXPRESSION AS LONG AS IT DOES NOT MEET THE LEGAL DEFINITION OF OBSCENITY Many people confuse the terms “pornography,” “indecency” and “obscenity” when discussing sexual expression. Printed materials and other types of expression can discuss or even depict sexual activities and still not meet the legal definition of obscenity. In First Amendment jurisprudence, the few categories of expression that receive no First Amendment protection include obscenity, fighting words, F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 6 child pornography and incitement to imminent lawless action. However, the Supreme Court has struggled mightily over the years to define obscenity. Justice Potter Stewart had such difficulty differentiating the obscene from the non-obscene that he could only write: “I know it when I see it.”12 Another justice referred to the issue as the “intractable obscenity problem.”13 While materials that depict hard-core sexual conduct may well be obscene, the legal test for determining if they are has varied over the years. Most early U.S. courts followed the rule from the British case Regina v. Hicklin,14 under which a book could be considered obscene if isolated parts of it were determined to be so. In 1957 the U.S. Supreme Court changed the test for obscenity in Roth v. United States.15 Under Roth, a work would not be considered obscene unless, taken as a whole, the material in question appealed to a prurient interest in sex, patently offended community standards and was “utterly without redeeming social value.” In 1973 the U.S. Supreme Court in Miller v. California laid out what it termed “basic guidelines” for jurors in determining whether certain material qualifies as legally obscene. These are: •Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. •Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law. •Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.16 Prosecutors have targeted a wide range of expressive materials for obscenity charges, including literature, movies, museum art and nude dancing. However, much of the challenged material did not qualify as obscene because it had serious literary or artistic value. A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 7 First Amendment jurisprudence distinguishes between obscenity and a category of less graphic sexual expression, often called “indecency.” In a 1989 dial-a-porn case, the U.S. Supreme Court wrote that “sexual expression which is indecent but not obscene is protected by the First Amendment.”17 The Court also has struck down federal laws criminalizing indecent speech in cyberspace and restricting indecent speech on cable television.18 The Court has recognized that nudity does not necessarily turn protected expression into unprotected obscenity. In Jenkins v. Georgia — the Supreme Court ruling that found the film “Carnal Knowledge” was not obscene — the conservative Justice William Rehnquist wrote that “nudity alone is not enough to make material legally obscene under the Miller standards.”19 Nudity is commonplace, not only in exotic dance but also in musicals, plays, operas and artwork. The musicals “Hair,” “Oh Calcutta!” and “Equus” feature nudity. Many other plays, such as “Star and Garter”and “The Naked Genius,” include strippers as characters. Eve Ensler’s play “The Vagina Monologues” focuses on female genitalia. Renée Cox’s controversial “Yo Mama’s Last Supper,”which features a nude picture of the artist as Jesus, drew the ire of then-New York Mayor Rudolf Giuliani early in 2001. It is clear from the Court’s decisions that it believes the Constitution protects expressive conduct, even if such conduct is nonpolitical and offensive, and that it does not equate nudity with obscenity. II.Dancing: a form of expressive conduct Dance has roots in ancient history. The Greek poet Euripides described dance in the Bacchae. Aristotle wrote in the Poetics that the purpose of dance is “to represent men’s character as well as what they do and suffer.” The modern-day belly dance has been traced back to the Egyptians of the fourth century, and in ancient Rome, dancing was an integral part of the annual festivals Lupercalia and Saturnalia. “Dance has biblical roots,” according to one federal appeals court judge who cited the passages, “Let them praise his name with dancing, making melody to F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 8 him with timbrel and lyre!” (Psalms 149:3) and “Praise him with timbrel and dance” (Psalms 150:4).20 According to Lucinda Jarrett, author of Stripping in Time: The History of Erotic Dancing,“the censorious nature of Christianity has meant that sexual dance flourished in the East long before it emerged in Europe and America.”21 By the 19th century, however, Spanish gypsies were dancing the erotic flamenco in the cafes of Europe, and nude showgirls were performing in Parisian music halls.22 England’s Windmill Theatre featured such shows as “My Bare Lady,”“She Strips to Conquer”and “Yes We Have No Pyjamas.”23 So-called “leg shows” were introduced into the opera houses of the United States after the Civil War. Many Americans first witnessed Middle Eastern belly dancers at the 1893 Chicago World’s Columbian Exposition. Nude dancers graced the stage in Florenz Ziegfield’s revues in New York City during the 1920s, and cheaper burlesque shows could be found at less glamorous locations. While many of the latter were raided, the so-called “legitimate” theater survived unscathed.24 The 1930s and ’40s featured famous striptease artists such as Blaze Starr and Gypsy Rose Lee, and the ’50s and ’60s witnessed the growth of striptease acts and topless go-go dancers. According to dance expert and cultural anthropologist Judith Hanna, “the 20th century placed the fully nude body into ‘high art’ theater dance — and moved exotic dance towards the mainstream.”25 Hanna, who has served as an expert witness in numerous adult-club cases, says that “nude dancing in any kind of performance both reflects and configures a society’s attitudes toward the body and its presentation.” She explains: “Nudity in exotic dance communicates messages of freedom, independence, gender equality, acceptance of the body, modernity, historical tension between how the body was revealed in the past and is revealed now, empowerment, a break with social norms and challenge to the status quo.”26 A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 9 Judith Hanna III.The courts and nude dancing EARLY COURT DECISIONS Early on, the courts granted city officials broad discretion to prevent expressive activity that they considered lewd or indecent. However, some courts acknowledged that the process of determining whether or not something qualified as lewd was highly subjective. For example, in 1953 the future U.S. Supreme Court Justice Brennan wrote in an opinion for the New Jersey Supreme Court that: “The standard ‘lewd and indecent’ is amorphous. … There is ever present, too, the danger that censorship upon that ground is merely the expression of the censor’s own highly subjective view of morality unreasonably deviating from common notions of what is lewd and indecent, or may be a screen for reasons unrelated to moral standards.”27 In that decision, the New Jersey court ruled that Newark city officials had violated the First Amendment by denying a theater license to someone they feared would stage indecent burlesque shows. The court reasoned that the performance of a burlesque show was a form of speech entitled to protection under the federal and state constitutions. In the late 1960s, a few courts began to recognize that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. In 1968 the Supreme Court of California ruled that it was “potentially a form of communication protected against state intrusion by the guarantees of the First Amendment.”28 The California high court quoted the definitions of dance listed in the Encyclopedia Britannica and the Century Dictionary, noting that “the very definition of dance describes it as an expression of emotions or ideas.” The California case that prompted this decision involved a topless dancer named Kelley Iser and Albert Giannini, owner of the nightclub where she danced. The two had been charged and convicted of willful and lewd exposure. Under state law, lewd conduct was considered obscene. Giannini and Iser appealed their convictions, arguing that the dancing was a form of expression protected by the First Amendment. The state attorney F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 10 general who argued against their position maintained that topless dancing has no social value and is obscene. In deciding for the dancer and club owner, the California court noted that the First Amendment protects more than political speech. “Thus, the First Amendment cannot be constricted into a straitjacket of protection for political expression alone,” the court wrote. “Its embrace extends to all forms of communication, including the highest: the work of art.”29 The First Amendment applies to many different communications media, including motion pictures and various other types of entertainment, said the court, which reasoned that Iser’s dance, no matter how vulgar, communicated a message to her audience. The final question for the court was whether Iser’s dance constituted obscenity. The court threw out the convictions because the prosecution failed to introduce evidence about community standards, a factor which the Supreme Court had emphasized since Roth. “To sanction convictions without expert evidence of community standards encourages the jury to condemn as obscene such conduct or material as is personally distasteful or offensive to the particular juror,” the California court wrote.30 U.S. SUPREME COURT ON NUDE DANCING The Supreme Court initially addressed the issue of First Amendment protection for nude dancing in its 1972 decision California v. LaRue.31 In 1970 California’s Department of Alcohol Beverage Control had issued rules regulating the type of live entertainment that could occur in businesses serving alcohol. The department was concerned by an increase in topless and bottomless dancing at bars. According to the department, increasing incidents of sexual misconduct (including prostitution and public masturbation) were being reported at many of these businesses. The regulations prohibited certain activities at bars serving alcohol, including: •The performance of acts or simulated acts of intercourse, masturbation “or any sexual acts which are prohibited by law.” A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 11 •The actual or simulated touching of the breast, buttocks, anus or genitals. •The public displaying of the pubic hair, anus or genitals. •The showing of any films or pictures which feature the above- mentioned activities. When local bar owners challenged the constitutionality of the regulations, the state argued that the rules were necessary to prevent sex crimes, prostitution and drug abuse. The Supreme Court ruled 6-3 in favor of the regulations. Writing for the majority, Justice Rehnquist noted that the states had broad power to regulate alcohol under the 21st Amendment, which gives states power to regulate the distribution of alcohol within their borders. He did, however, hint that some of the dancing in the clubs merited constitutional protection when he wrote that “at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression.”32 Justice Brennan authored a short dissenting opinion, writing that the California regulations clearly applied to some expression deserving of First Amendment protection. Justice Thurgood Marshall wrote a lengthier dissent, finding that the state of California could not regulate sexual performances unless they qualified as obscene. He wrote that “the empirical link between sex-related entertainment and the criminal activity popularly associated with it has never been proven and, indeed, has now been largely discredited.”33 Marshall also pointed out that the state could punish sex crimes and drug use directly, rather than engage in a “broadscale attack on First Amendment freedoms.” The Supreme Court in its 1975 decision Doran v. Salem Inn again hinted that at least some nude dancing merits a degree of First Amendment protection.34 The case grew out of an ordinance passed by the town of North Hempstead, N.Y., that prohibited waitresses, barmaids and entertainers from exposing their breasts in public. F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 12 The Court ruled that a lower federal court had not abused its discretion in granting several bars a preliminary injunction prohibiting the town from enforcing its anti-nudity ordinance. Again writing for the Court, Justice Rehnquist noted: “Although the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.”35 Rehnquist distinguished the North Hempstead ordinance from the California regulations in LaRue by noting that the town ordinance applied to nudity in any public place, not just in liquor establishments. He also quoted with approval the lower court judge’s warning that the town’s anti-nudity law could apply to “the performance of the ‘Ballet Africains’ and a number of other works of unquestionable artistic and socially redeeming significance.” The Court next addressed the constitutionality of restrictions upon nude dancing in its 1981 decision Schad v. Borough of Mount Ephraim.36 The town of Mount Ephraim, N.J., had passed an ordinance prohibiting all live entertainment within its borders. An adult bookstore was charged with violating the ordinance after it began offering live nude dancing in coin- operated booths. The bookstore challenged the constitutionality of the ordinance, arguing that the banning of non-obscene nude dancing violated free-expression rights. The Supreme Court ruled 7-2 that the ordinance was unconstitutional. In an opinion by Justice Byron White, the majority ruled that the borough’s exclusion of live entertainment clearly violated the First Amendment. White wrote that “nude dancing is not without its First Amendment protections from official regulation.”37 The city had argued that the ordinance was merely a zoning ordinance that did not target the content of expression and that the law’s purpose was not to restrict expression but to avoid the problems associated with businesses that offer live entertainment, such as parking, trash and police protection. However, Justice White noted that other permitted businesses would cause these same problems. “We do not find it self-evident that a theater, for example, would create greater parking problems than would a restaurant,” he wrote.38 A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 13 Chief Justice William Burger and Justice Rehnquist dissented, finding that “a community of people are — within limits — masters of their own environment.”39 “Citizens should be free to choose to shape their community so that it embodies their conception of the ‘decent life,’” Burger wrote.40 The Schad ruling stands for the general principle that, while cities may zone adult businesses, they may not totally ban them. In three cases, the justices had stated in passing that nude dancing was entitled to some degree of First Amendment protection. The justices confirmed this in the 1991 decision Barnes v. Glen Theatre.41 Barnes concerned an Indiana law that criminalized public nudity and required dancers to wear G-strings and pasties. Even though the Court upheld the public nudity law, eight of the nine members recognized that nude dancing was a form of expressive conduct meriting some degree of First Amendment protection. A slender majority of the high court ruled against the dancers and the adult clubs. The five members of the majority wrote three separate opinions, making it difficult to understand the court’s ruling. Justices Rehnquist, Sandra Day O’Connor and Kennedy joined in a plurality opinion. They recognized that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.”42 They determined that requiring dancers to don G-strings and pasties was not a restriction on the First Amendment. They called it a “minimal restriction … [that] leaves ample capacity to convey the dancer’s erotic message.”43 The plurality applied the O’Brien test and ruled that the government was justified in passing the public nudity law to protect the government’s interests in order and morality. They argued the law did not target erotic dancing but the “evil” of “public nudity.” F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 14 Justice Antonin Scalia said the law did not implicate the First Amendment but punished unlawful conduct, i.e., public nudity. He determined that the general law targeting public nudity was a generally applicable law that “is not subject to First Amendment scrutiny at all.” In a separate opinion, Justice David Souter, the other justice in the majority, also applied the O’Brien test but took a much different approach than the three-justice plurality. He based his decision on a concept called “secondary effects,” which had grown out of adult-business zoning cases. The secondary-effects doctrine provides that government officials may regulate nude dancing as long as their reason for regulation is to combat harmful effects allegedly associated with adult businesses, such as increased crime or decreased property values. Souter reasoned that the nudity ban advanced the government’s interest in combating harmful secondary effects allegedly associated with adult businesses. Four justices — White, Marshall, Harry Blackmun and John Paul Stevens — dissented. They argued that the state had targeted exotic dancers because officials disliked nude dancing. “That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine,” Justice White wrote for the dissent.44 The four separate opinions in the 5-4 Barnes decision caused great confusion among the lower courts. One federal appeals court described trying to understand the case as “reading tea leaves.”45 Most lower courts, however, followed the reasoning of Justice Souter and used the secondary-effects rationale to regulate nude dancing. IV.Development of the secondary-effects doctrine Most restrictions on adult entertainment are now justified by the secondary- effects doctrine. Municipalities claim they are targeting adult-entertainment establishments not because they wish to suppress free expression, but because A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 15 they are concerned with certain adverse effects allegedly associated with adult businesses. These adverse effects — the so-called “secondary effects” — include decreased property values, increased crime, prostitution and traffic congestion. The secondary-effects doctrine grew out of adult-business zoning cases. Cities have traditionally used one of two methods to curtail the harmful effects of adult businesses: They either disperse the adult businesses to locations throughout the city or they relegate them to a certain area. For example, many ordinances prohibit adult businesses from locating within a certain distance from churches, schools or from other adult businesses. Other ordinances confine adult businesses to certain zoning areas, thereby ensuring that such businesses will not open in residential or other areas. The reach of the secondary-effects doctrine has extended even further than determining the geographic location of adult businesses. In the aforementioned Barnes case, Justice Souter extended the secondary-effects rationale to cover the content of nude dancing. The secondary-effects doctrine has also been used to restrict commercial speech and political speech. Some secondary effects cited by government officials include noise, security problems, residential privacy, appearances of impropriety, employment discrimination, negative effects of gambling, competition in the video-programming market, sexual arousal of readers and harm to children. YOUNG V. AMERICAN MINI THEATRES46 The secondary-effects doctrine had its beginnings in the land-use regulation of adult businesses. The Supreme Court first articulated the doctrine in its 1976 decision Young v. American Mini Theatres. The lawsuit that led to the Young decision came about when the city of Detroit amended its “Anti-Skid Row Ordinance” to provide zoning limitations for adult businesses. The ordinance provided that no adult business could be located within 1,000 feet of any two existing adult businesses or within 500 feet of any residential area. F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 16 The theater that challenged the law contended that the zoning ordinance was a content-based law that targeted businesses because officials did not like the expressive messages conveyed by the adult material displayed there. The Supreme Court reasoned that the law was not passed to silence offensive expression but to prevent the deterioration of neighborhoods. In a footnote, Justice Stevens characterized such neighborhood deterioration as a “secondary effect.” He wrote: The Common Council’s determination was that a concentration of adult movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of “offensive speech.”47 Legal commentators criticized the decision because the Court’s majority characterized the zoning ordinance as content-neutral, even though it singled out adult theaters. John Weston, a First Amendment lawyer who argued the Young case before the Supreme Court on behalf of the adult theaters, said the case represented “the first chink in the armor.”48 “During depositions in the case, the government attorneys basically admitted that they were turning to zoning because they couldn’t get obscenity convictions against the theater owners,” Weston said.49 CITY OF RENTON V. PLAYTIME THEATRES50 The city of Renton, Wash., a small town near Seattle, passed an adult- business zoning law in 1981that prevented adult businesses from locating within 1,000 feet of any residential area, school, park or church. Two adult businesses challenged the law on First Amendment grounds. The plaintiffs argued that the city had passed the law without conducting any research to determine whether adult businesses in fact had any harmful effects on the surrounding community. Instead, Renton leaders relied on the 17 A FIRST AMENDMENT CENTER PUBLICATION A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE John Weston experience of other cities, including Seattle. The plaintiffs claimed this proved the law was passed because of a dislike for the expressive material involved. The Supreme Court upheld the zoning law in Renton v. Playtime Theatres, concluding that “our result is largely dictated by our decision in Young.” The majority noted that the zoning law did not closely resemble a content-neutral law. However, the Court ruled that a seemingly content-based law can be considered a content-neutral law for constitutional purposes if the aim of the law was to address harmful secondary effects. The Court wrote: To be sure, the ordinance treats theaters that specialize in adult films differently from other kinds of theaters. Nevertheless, the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at “adult motion picture theaters,” but rather at the secondary effects of such theaters in the surrounding community.51 The Court determined the regulation to be content-neutral, even though the zoning law regulated theaters based on the content of their films. Under this analysis, such a regulation must serve a substantial governmental interest and must not unreasonably limit alternative avenues of communication. This inquiry remains vital in adult-entertainment zoning litigation. The cases often revolve around how many potential sites are available for prospective adult business owners in the city. The courts will find a challenged zoning ordinance unconstitutional unless a minimum number of sites exist where adult businesses can locate or relocate. In his dissent, Justice Brennan criticized the majority’s determination that the zoning law was content-neutral. He wrote that, while the city of Renton may well have had a compelling interest in combating harmful secondary effects, that “does not mean that such regulations are content-neutral.”52 The majority in Renton also determined that a city does not have to conduct its own study to justify its reliance on the secondary-effects argument. “The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 18 generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.”53 Thus, the Court ruled that the city of Renton was not required to conduct its own study of secondary effects. Most courts do require, however, that a city at least consider secondary effects at the time an ordinance is passed rather than using them as a post-hoc, or after-the-fact, rationale. V.Extension of the secondary-effects doctrine After Young and Renton, cities passed numerous zoning laws regulating the location of adult businesses. Cities also enacted further restrictions regulating the content of nude dancing. The Supreme Court extended the secondary-effects doctrine from its original context to include direct attacks on expression — i.e., regulation of the content of nude dances. One expert describes the process of extending the secondary-effects rationale beyond the land-use scenario as “using football rules in a hockey game.”54 This process began with Justice Souter’s concurring opinion in Barnes v. Glen Theatre. Souter considered that the general public-nudity law was not related to the suppression of free expression but was designed to address harmful secondary effects. Souter extended — and, many believe, overextended — the secondary- effects rationale by applying it to a direct attack on free expression. The extension of the secondary-effects rationale was significant, because Young and Renton were both zoning cases focusing on the location of adult businesses. Barnes,on the other hand, involved a direct restriction on the nature of exotic dancing.55 Souter wrote that the secondary-effects rationale justified the Indiana law, even though “it is unclear to what extent this purpose motivated the Indiana Legislature in enacting the statute.” Attorney Weston says that many adult-entertainment lawyers were “horrified” at Souter’s opinion for many reasons. “The opinion showed a fundamental A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 19 F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 20 misconception about secondary effects,” Weston said. “Souter basically extended a time, place and manner concept into a direct attack on free expression.”56 CITY OF ERIE V. PAP’S A.M.57 In 2000 the U.S. Supreme Court considered another First Amendment challenge to a law that prohibited totally nude dancing. After the Barnes decision, the city of Erie, Pa., passed a law that targeted public nudity. The Court upheld this law in City of Erie v. Pap’s A.M., saying it was nearly “identical” to the Indiana law in Barnes. This time the majority adopted Justice Souter’s secondary-effects rationale in Barnes as its justification: “We conclude that Erie’s asserted interest in combating the negative secondary effects associated with adult entertainment establishments like Kandyland is unrelated to the suppression of the erotic message conveyed by nude dancing.” The majority did note that Kandyland (the adult business challenging the law) “had ample opportunity to contest the council’s findings about secondary effects before the council itself, throughout the state proceedings, and before this Court.”58 This last point might be a small nugget of hope for lawyers representing adult businesses, because the opinion could be read to require a city to allow prospective adult businesses to prove that businesses of their sort do not cause certain harmful secondary effects. Weston, who argued the case before the Supreme Court, said that at least the Court did away with what he called “Rehnquist’s morality justification in Barnes.” He says, “At least under Pap’s, we can attack the validity of the underlying proof by showing that these businesses do not cause adverse secondary effects.”59 Interestingly, both Justice Stevens, who first used the term “secondary effects” in Young, and Justice Souter, who extended the secondary-effects doctrine beyond zoning cases in Barnes,dissented in Pap’s A.M. Stevens deplored the extension of the secondary-effects doctrine beyond its original application in zoning cases. He wrote: Far more important than the question (of) whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the Court endorses today. Until now, the secondary effects of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify the total suppression of protected speech.60 Stevens asserted that “the Court’s use of the secondary effects rationale to permit a total ban has grave implications for basic free-speech principles.”61 Justice Souter also dissented, saying that he had made an error in his concurrence in Barnes when he said that a governmental entity did not need localized proof of secondary effects. He wrote: I may not be less ignorant of nude dancing that I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted.62 CURRENT SECONDARY-EFFECTS JURISPRUDENCE Today the secondary-effects rationale dominates First Amendment jurisprudence in the adult-entertainment context. Attorneys on both sides present expert witnesses and studies showing either the evidence (or lack thereof) regarding secondary effects. Bruce McLaughlin, a Florida-based land-use planner who has analyzed numerous secondary-effects studies, identifies two “primary problems” with these studies, which usually are conducted by a government employee. “First of all, there are a group of studies that show no evidence of secondary effects,” he said. “However, these studies get lost in the shuffle and are buried or ignored.”63 McLaughlin also said that “there is an incestuous relationship among the various studies.” He claimed that many of the government studies were not independent. McLaughlin has conducted 40 of his own studies which show A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 21 Bruce McLaughlin virtually no evidence of adverse secondary effects caused by various adult businesses. For example, he said his examination of police logs showed a greater number of police calls to other businesses than to adult-oriented businesses.64 A study cited in a recent 11th U.S. Circuit Court of Appeals decision appears to confirm McLaughlin’s point. In 1997 the Fulton County, Ga., police department completed a study in which it examined the number of times during a two-year period that police were called to businesses serving alcohol. The study concluded that the police received a greater number of calls from non-adult establishments that served alcohol than from adult establishments that served alcohol. The 11th Circuit cited this study as evidence that Fulton County did not have sufficient evidence of harmful secondary effects to prohibit the sale of alcohol at nude-dancing businesses.65 The court concluded that in Flanigan’s Enterprises v. Fulton County the county “may not ban nude dancing in establishments licensed to sell liquor without any factual basis to support the claim that these establishments are connected with negative secondary effects.” McLaughlin called this a “watershed case that could lead us toward a move in the right direction.” On May 13, 2002, the U.S. Supreme Court decided another secondary effects case — City of Los Angeles v. Alameda Books.66 The high court examined a Los Angeles law prohibiting a single adult establishment from functioning as both an adult bookstore and an adult arcade. The city had passed an amendment banning so-called “multiple-use” adult businesses without showing evidence that these type of businesses caused any harmful effects. Instead, the city relied on a study done six years earlier, which examined the harmful effects of having too many adult businesses in a single area. The city argued it was reasonable to rely on the prior study. The 9th Circuit struck down the amendment prohibiting multiple-use adult businesses. But the high court reversed the 9th Circuit, writing that the “city F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 22 of Los Angeles may reasonably rely on a study it conducted some years before enacting” its new law.67 However, the Court’s ruling only said that the city’s ban could not be struck down at this “very early stage in the process.” The case now goes back to the lower courts for more litigation. The case seems to continue the pattern of increased deference to government officials with respect to secondary effects. More litigation will be needed to clarify the ramifications of the Court’s decision. PATRON-PERFORMER BUFFER ZONES Many municipalities have attempted to restrict contact between dancers and customers by establishing buffer zones. A few courts have upheld buffer zones of 10 feet, which eliminate table dances and lap dances. The 9th Circuit upheld a 10-foot buffer zone between patron and performer in a Kent, Wash., ordinance. The club owners alleged that the buffer zone banned table dancing, which they argued was a unique form of expression. The appeals court in Colacurcio v. City of Kent said it would “leave the fine- tuning of the distance requirement to the legislative body.”68 The appeals court reasoned that the zone was a narrowly tailored way to prevent illegal sexual contact and drug transactions. The court reasoned that the 10-foot requirement “does not rob dancers of their forum or their entire audience.”69 As to the club owners’ arguments that table dancing is a unique form of expression, the appeals court replied that “uniqueness alone is insufficient to trigger First Amendment protection.”70 Judge Stephen Reinhardt dissented, finding that table dancing was a unique form of expression compared to stage dancing. He reasoned that the club owners had presented enough evidence, including testimony from cultural anthropologist Hanna, that table dancing is “an altogether different form of expression that depends upon proximity and communicates a different and particular content.”71 A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 23 Hanna said buffer zones substantially change the message conveyed by the dancer. She pointed out that “performer-patron touch commonly occurs in the performing arts” and that “much of contemporary theater has been breaking down barriers between spectator and performer.” HOURS OF OPERATION Many cities attempt to limit the hours of operation of adult businesses. City officials contend that these provisions are reasonable time, place and manner restrictions on speech. They argue that the businesses are still open for most hours of the day and that the regulations are justified by a reliance on secondary effects. Club owners respond that the rules mandating hours of operation are simply a thinly veiled disguise for prejudice against their form of expression. They contend that more crime is committed at 24-hour convenience stores than at adult establishments. Most courts have sided with the city regulators. In DiMa Corp. v. Town of Hallie, the 7th U.S. Circuit Court of Appeals ruled that an hours-of-operation restriction was constitutional even though the city could point to no evidence that the only adult business in its town attracted crime.72 The town argued that its law limiting the hours of operation was based on the experiences of a nearby town. The 7th Circuit determined that the town had only “minimally” satisfied its burden of proof. The court did note that it had “no reason to believe that this is a significant impairment of Pure Pleasure’s business.” This seems to imply that if an adult business could show both a lack of crime at its business during late-night and early-morning hours and also a loss of profits, then it might be able to ward off such a restriction. More and more adult businesses are now commissioning studies, performed by experts such as McLaughlin, to show that adult businesses do not cause a greater incidence of crime than non-adult businesses. F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 24 THE CONTENT OF NUDE DANCING Some municipalities have gone so far as to censor the movements of exotic dancers. Many ordinances prohibit dancers from engaging in lewd or obscene activities. Some provisions go even further. For example, one Ohio administrative law prohibited dancers from committing “improper conduct of any kind, type or character that would offend the public’s sense of decency, sobriety or good order.” A federal judge struck down this provision, ruling that it “goes well beyond what is necessary” to further the state’s interest in combating the harmful effects of adult businesses. The judge reasoned that this law would outlaw pop music superstar Michael Jackson’s famous crotch grab. The judge also reasoned that this provision would give license to state agents to selectively punish certain dancers.73 A Wisconsin city passed a comprehensive ordinance regulating nearly all facets of adult businesses. One provision prohibited dancers from “appearing in a state of nudity or depicting specified sexual activities.” The ordinance defined these activities as: “the fondling or erotic touching of human genitals, pubic region, buttocks, anus or female breasts.” The 7th Circuit ruled that under Barnes and Pap’s A.M., it was constitutional to prohibit totally nude dancing. But the appeals court said that banning specified sexual activities went too far. “By restricting the particular movements and gestures of the erotic dancer, in addition to prohibiting full nudity, [the provision] unconstitutionally burdens protected expression.”74 LICENSING AND PROCEDURAL SAFEGUARDS Another method city regulators use to regulate adult businesses is through administrative licensing schemes. If an adult business fails to comply with city codes, regulators may revoke the business’ operating permit. If an adult business seeks to operate in a new location, it often must clear certain hurdles before obtaining the necessary approval from city officials. A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 25 Many adult-entertainment businesses argue that city officials camouflage their discriminatory intent by hiding behind licensing laws. However, such laws are also subject to First Amendment challenges. In its 1965 decision Freedman v. Maryland,the U.S. Supreme Court said that a Maryland film censorship statute needed three procedural safeguards to be constitutional:75 •A decision whether to issue a license must be made in a “specified brief period,” and if someone appeals a license denial, the status quo must be preserved pending a final judicial decision. •The licensing scheme must assure a “prompt final judicial decision.” •The burden of proof must be on the city to prove that its license is constitutional.76 In the 1990 decision FW/PBS v. City of Dallas, the high court said that the first two prongs of the Freedman analysis were applicable to licensing ordinances for adult businesses.77 These two procedural safeguards include: •The decision to issue or deny a license must be made within a “specified and reasonable time period.” •“There must be the possibility of prompt judicial review in the event that the license is erroneously denied.”78 The lower courts are split on the issue of what constitutes “the possibility of prompt judicial review.” Some courts define this as mere access to the courts. Other courts require both a prompt hearing and a prompt decision by a judge. The 9th Circuit described the necessity of judicial review as follows: The phrase ‘judicial review’ compels this conclusion. The phrase necessarily has two elements — (1) consideration of a dispute by a judicial officer, and (2) a decision. Without consideration, there is no review; without a decision, the most exhaustive review is worthless. In baseball terms, it would be like throwing a pitch and not getting a call. As legendary major league umpire Bill Klem once said to an inquisitive catcher: ‘It ain't nothing F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 26 till I call it.’ This is also true of judicial review. Until the judicial officer makes the call, it ain’t nothing.79 Adult-business owners insist that many licensing schemes operate as prior restraints on expression. The schemes, they say, allow the city to discriminate and target certain businesses it dislikes. City officials counter that the ordinances are necessary to control unlawful behavior. Many Supreme Court observers expected the Court to clarify the meaning of prompt judicial review in City News & Novelty v. City of Waukesha,a case involving an adult bookstore in Wisconsin.80 However, the Court determined that the case was moot. Some also thought that the Court might decide the “prompt judicial review” decision in the park-permit case Thomas v. Chicago Park District.81 However, in January 2002, the Court decided the case without addressing the question. The lower courts remain divided on the meaning of prompt judicial review. VII.Conclusion In many ways, the adult-entertainment industry tests Americans’ commitment to freedom of expression. Exotic dancing in adult-entertainment clubs remains a First Amendment stepchild, on the periphery of protection and subject to a host of regulations. The strength of First Amendment freedoms can be gauged by the level of tolerance for unpopular expression. Free-speech advocates argue that if society punishes controversial expression, everyone in society loses some measure of their freedom. Because the adult-entertainment industry features controversial expression and wealthy litigants, the litigation in these cases shapes this country’s free- expression jurisprudence. Principles from adult-bookstore cases have been used in a wide variety of cases to lower the level of judicial review on a host of other speech restrictions. For example, the U.S. Justice Department cited the Renton and Pap’s A.M. cases in support of a federal wiretapping law that prohibits the disclosure of intercepted communications.82 The U.S. Supreme A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 27 Court cited Renton in support of lowering the government’s evidentiary burden to support speech restrictions in the area of campaign contributions and attorney solicitation letters.83 The secondary-effects doctrine has proven to be fertile ground for abuse because it enables government officials to conceal their thinly disguised dislike for adult entertainment behind claims of harmful effects. In 1988 Justice Brennan warned that the doctrine “could set the court on a road that will lead to the evisceration of First Amendment freedoms.”84 The secondary-effects doctrine has been applied in cases far removed from issues relating to the land-use regulation of adult businesses. For example, a federal judge in Kentucky recently used the secondary-effects rationale to uphold the constitutionality of a public high school dress code, determining that the code was really aimed at the “secondary effects of student dress,” such as gang activity, violence and inability to identify campus visitors.85 The doctrine threatens to undermine existing First Amendment free-speech jurisprudence.86 For this reason, First Amendment expert Robert O’Neil classifies Pap’s A.M.as the “most disappointing First Amendment decision decided by the court in the last two years.”87 Ken Paulson, executive director of the First Amendment Center, noted that “the decision is troubling because it took a short cut that threatens freedom of speech well beyond the confines of a topless bar.”88 A major question that still has not been clarified by the Supreme Court is what level of proof of secondary effects is required by the Constitution. Lower courts have widely varying requirements for the amount of secondary-effects evidence municipalities must provide in order to justify restrictions on nude- dancing establishments. Weston argues that the government will continue to suppress erotic expression because it is a convenient target. “Erotic expression is a perfect diversionary topic,” he said. “In our society, the government cannot deal with real problems so they try to divert the public’s attention to a politically popular topic.” F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 28 When asked why government officials continue to target the adult industry, Weston responds by quoting journalist H.L. Mencken: “Puritanism: The haunting fear that someone, somewhere, may be happy.” Censorship of the adult industry also appears to contain a dangerous element of class discrimination. Adult bookstores and striptease bars are considered illegitimate, low forms of entertainment, while nudity at higher-priced theaters is considered legitimate, bona-fide expression. Government officials and many in the community are more offended by the sexual gyrations of a stripper than the artistic skill of a Broadway entertainer. However, federal appeals court Judge Richard Posner terms this “robust paternalism and class consciousness.”89 Another federal judge expressed the sentiment as follows: “Perhaps the city of Schenectady finds the performance in cabarets more objectionable because the audience is mostly men who prefer to drink Budweiser while they view the naked form engaged in dance, rather than the couples at the opera who prefer Dom Perignon with their falsetto.”90 Porn magnate Larry Flynt said it this way: “The adult bookstore is the poor man’s art museum.”91 Nude dancing may offend; it may fail to appeal to the higher intellect. But First Amendment protection for nude-dancing establishments affects more than disrobing dancers. It affects all who care about constitutional freedoms. A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 29 Endnotes 1 Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech,(New York: West Group, 1996), Vol.I, Section 9.19, n.11; Bryant Paul, Daniel Linz, and Bradley Shafer. “Government Regulation of ‘Adult’ Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects,” 6 Comm. L. & Pol’y 355 (2001); David L. Hudson Jr., The Secondary Effects Doctrine: “The Evisceration of First Amendment Freedoms” 37 Washburn L.J. 55 (1997). 2 Winters v. New York,333 U.S. 507, 510 (1948). 3 Burstyn, Inc. v. Wilson,343 U.S. 495 (1952). 4 Stromberg v. California,283 U.S. 359, 369 (1931). 5 391 U.S. 367 (1968). 6 Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). 7 Alexis de Tocqueville, Democracy in America (1835). 8 Terminiello v. City of Chicago,337 U.S. 1, 4 (1948). 9 491 U.S. 397 (1989). 10 Id. at 418. 11 529 U.S. 803, 826 (2000). 12 Jacobelli v. Ohio,378 U.S. 184, 197 (1964). 13 Ginsberg v. New York,390 U.S. 676, 704 (1968) (J. Harlan, concurring). 14 L.R. 3 Q.B. 360 (1868). 15 354 U.S. 476 (1957). F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 30 16 413 U.S. 15, 24 (1973). 17 Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989). 18 Reno v. ACLU,521 U.S. 844 (1997); Denver Area Educ. Telecom. Consortium v. FCC,518 U.S. 727 (1996). 19 Jenkins v. Georgia,418 U.S. 153, 161 (1975). 20 Miller v. Civil City of South Bend, 904 F.2d 1081,1085 (7th Cir. 1990). 21 Lucinda Jarrett, Stripping in Time: The History of Erotic Dancing (San Francisco: Pandora 1997), p. 2. 22 David Cheshire, “Eroticism in the Performing Arts,” 297-328 at 298 in Peter Webb, The Erotic Arts (New York: Farrar, Straus, Giroux 1983). 23 Cheshire at p. 303-304. 24 Jarrett at p. 137. 25 Telephone interview with Judith Hanna, 3/7/2001. 26 Id. 27 Adams Theatre Co. v. Keenan,96 A.2d 519, 521 (N.J. 1953). 28 In re Giannini, 446 P.2d 535, 538 (1968). 29 Id. at 540. 30 Id. at 547-48. 31 409 U.S. 109 (1973). 32 Id. at 118. 33 Id. at 131 (J. Marshall dissenting). A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 31 34 422 U.S. 922 (1975). 35 Id. at 932. 36 452 U.S. 61 (1981) 37 Id. 38 Id. at 73-74. 39 Id. at 85 (J. Burger, dissenting). 40 Id. at 87. 41 501 U.S. 560 (1991). 42 Id. at 565. 43 Id. at 572. 44 Id. at 593 (J. White, dissenting). 45 Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134-35 (6th Cir. 1994). 46 427 U.S. 50 (1976). 47 Id. at 81, n. 4 48 Telephone interview with John Weston, 4/3/2001. 49 Id. 50 475 U.S. 41 (1986). 51 Id. at 47. 52 Id. at 56 (J. Brennan, dissenting). F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 32 53 Id. at 51-52. 54 Telephone interview with Bruce McLaughlin, 3/6/2001. 55 Hudson, supra n. 1. 56 Telephone interview with Weston, 4/3/2001. 57 120 S.Ct. 1382 (2000). 58 Id. at 298. 59 Telephone interview with Weston, 4/3/2001. 60 120 S.Ct. at 1406 (J. Stevens, dissenting). 61 Id. at 322 (J. Stevens, dissenting). 62 Id. at 1405-1406 (J. Souter dissenting). 63 Telephone interview with Bruce McLaughlin, 3/6/2001. 64 Id. 65 Flanigan’s Enterprises, Inc. v. Fulton County,242 F.3d 976 (11th Cir. 2001). 66 City of Los Angeles v. Alameda Books, Inc. (00-799), 535 U.S. - (2002). 67 Id. 68 Colacurcio v. City of Kent, 163 F.3d 545, 554 (9th Cir. 1998). 69 Id. at 556. 70 Id. at 555. A DULT E NTERTAINMENTANDTHE S ECONDARY-EFFECTS D OCTRINE A FIRST AMENDMENT CENTER PUBLICATION 33 71 Id. at 559. 72 185 F.3d 823 (7th Cir. 1999). 73 J.L. Spoons, Inc. v. O’Connor,190 F.R.D. 433 (N.D. Ohio 1999). 74 Schultz v. City of Cumberland, 228 F.3d 831, 847 (7th Cir. 2000). 75 380 U.S. 51 (1965). 76 Id. at 58-59. 77 493 U.S. 215 (1990). 78 Id. at 228. 79 Baby Tam & Co., Inc. v. City of Las Vegas,154 F.3d 1097, 1101-1102 (9th Cir. 1998). 80 City News & Novelty Inc. v. City of Waukesha,- U.S. -, 121 S.Ct. 743 (2001); see David L. Hudson Jr. “Prurient Protections, Prohibitions,” ABA Journal (October 2001) 32-34, 34. 81 Thomas v. Chicago Park District, - 534 U.S. 316 (2002). 82 Brief of United States, Bartnicki v. Vopper, 99-1687 at p. 19-21. 83 Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 393 at n. 6 (2000); Florida Bar v. Went For It, Inc.,515 U.S. 618, 628 (1995). 84 Boos v. Berry, 485 U.S. 312, 338 (1988)(J. Brennan, dissenting). 85 Long v. Board of Education of Jefferson County,121 F.Supp.2d 621(W.D. Kent. 2000). 86 Hudson at 93. 87 Telephone interview with Robert O’Neil, 3/5/01. 88Ken Paulson, “Nude dancing case threatens free speech,” freedomforum.org (4/26/2000). F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 34 89 Miller v. Civil City of South Bend,904 F.2d 1081, 1098 (J. Posner, concurring) 90 Nakotomi Investments, Inc. v. City of Schenectady, 949 F.Supp. 988, 999 (N.D. N.Y. 1997). 91 David L. Hudson Jr., “Larry Flynt Primed to Battle Obscenity Charges,” freedomforum.org (5/22/98). F IRST R EPORTS A FIRST AMENDMENT CENTER PUBLICATION 35 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. — F IRST A MENDMENTTOTHE U.S. CONSTITUTION Board of Trustees CHARLES L.OVERBY CHAIRMAN AND CHIEF EXECUTIVE OFFICER PETER S.PRICHARD PRESIDENT JIMMY R.ALLEN GEN.HARRY W.BROOKS JR. MICHAEL G.GARTNER WILMA P.MANKILLER BRIAN MULRONEY JAN NEUHARTH WILL NORTON JR. JOHN SEIGENTHALER PAUL SIMON The First Amendment Center works to preserve and protect First Amendment freedoms through information and education. The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, the right to assemble and to petition the government. The First Amendment Center, with offices at Vanderbilt University in Nashville, Tenn., and Arlington, Va., is an independent affiliate of the Freedom Forum and the Newseum, the interactive museum of news. The Freedom Forum is a nonpartisan foundation dedicated to free press, free speech and free spirit for all people. irst Reports is an ongoing series of publications produced by the First Amendment Center to provide in-depth analysis and background on contemporary First Amendment issues. Pu b l i c a t i o n 0 2 - F 0 3 | 2 . 5 k | B L F First Amendment Center Kenneth A.Paulson EXECUTIVE DIRECTOR John Seigenthaler FOUNDER 1207 18th Avenue South Nashville,TN 37212 615/727-1600 1101 Wilson Boulevard Arlington,VA 22209 703/528-0800 www.freedomforum.org To order additional copies of this report, Call 1-800-830-3733 or e-mail puborder@freedomforum.org and request publication 02-F03. Adult Business Operation Ordinance Madison County, Illinois Madison County, Illinois ORDINANCE NO. 95-05 ENACTING AS AN ORDINANCE, A CODE ADOPTING RULES, REGULATIONS AND RESTRICTIONS TO OVERSEE AND CONTROL THE OPERATION OF ADULT BUSINESSES WITHIN THE UNINCORPORATED AREAS OF MADISON COUNTY. WHEREAS, the Courts of Illinois as well as the United States Supreme Court have recognized that County's authority to adopt rules and regulations over the operation of adult entertainment businesses; and, WHEREAS, the use of booths, rooms or cubicles in an Adult Business can, by reason of their design and intended use, facilitate the spread of sexually transmitted diseases (both fatal and non-fatal); and, WHEREAS, the County has a substantial government interest in protecting the public health, safety and welfare of its citizens and all persons within the County, and of propounding standards to eliminate the possibility of infection by contagious sexually transmitted diseases; and, WHEREAS, the regulation of adult entertainment businesses is necessary to prevent undesirable secondary effects on surrounding areas, including but not limited to a tendency to attract an undesirable quantity and quality of transients; to effect property values adversely, to cause an increase in crime, especially prostitution; to contribute to the blighting or down-grading of surrounding neighborhoods/areas; and to encourage residents and businesses to move elsewhere; and, WHEREAS, this Ordinance is intended to prevent secondary effects of adult entertainment businesses, and is not intended to protect citizens from "offensive" speech or to suppress free expression protected by the First Amendment of the United States Constitution; and, WHEREAS, the County has reviewed the effects of unregulated adult entertainment businesses in surrounding counties and municipalities, and has determined that the secondary effects of same are unacceptable; and, WHEREAS, the County Board is desirous of adopting such rules, regulations and restrictions, and incorporating said ordinances into the general County Code. NOW THEREFORE, be it ordained by the Madison County Board that the following shall constitute the Chapter on "Adult Business Regulations" of the Madison County Code. The Clerk of this County is hereby authorized and ordered to publish a copy of said Ordinance in a newspaper of general circulation within the County. In addition, the Clerk is also authorized and ordered to file a copy of said Ordinance in the Office of the County Clerk. Said Code shall be deemed in full force and effect immediately upon publication of said Ordinance, and same shall be presumptive evidence in all courts and places of the ordinance and all provisions, sections, penalties and regulations therein contained and of the date of passage, and that the same is properly signed, attested, recorded and approved and that any public hearings and notices thereof as required by law have been given. Respectfully submitted, Land Use Committee Legislative Committee APPROVED AS TO FORM: William R. Haine State's Attorney Madison County, Illinois PASSED AND ADOPTED by the Madison County Board this 20th day of September, 1995. NELSON HAGNAUER, CHAIRMAN MADISON COUNTY BOARD ATTEST: DEBBIE SALTICH MADISON COUNTY CLERK ADULT BUSINESS REGULATIONS DEFINITIONS. For the purpose of this Ordinance, the following definitions shall apply unless the context clearly indicates or requires a different meaning. All words and phrases used in this ordinance which are not defused herein shall have the meaning ascribed to such words and phrases in common usage. ADULT BUSINESS. Any establishment having as a substantial or significant portion of its stock in trade or business activity in a use such as, but not limited to the following: Adults-Only Bookstores, Adults-Only Motion Picture Theaters, Adult Entertainment Centers, Massage Parlors, Rap Parlors, Adults-Only Cabarets or Adults-Only Saunas, where explicit sexual conduct is depicted and or sexual activity is explicitly or implicitly encouraged or tolerated. ADULT ENTERTAINMENT BUSINESS. Synonymous with "Adult Business," as defined herein. ADULT ENTERTAINMENT CENTER. An enclosed building or part of an enclosed building, which contains one or more coin-operated mechanisms which when activated permit a customer to view a live person nude or in such attire, costume or clothing as to expose to view the human male or female genitalia; pubic hair; buttocks; perineum; anal or pubic regions; or, female breast, at or below the areola thereof. In addition, the viewing of a live person, in the above-described manner, after paying of any admission or fee for the viewing of same activity. ADULTS-ONLY. Any items or activities emphasizing, depicting, describing or relating to nudity, explicit sexual conduct (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity. ADULTS-ONLY BOOKSTORE. An adults-only establishment having as a substantial or significant portion of its stock in trade, books, magazines, films for sale or viewing on premises by use of motion picture devices or other coin-operated means, and other periodicals which are distinguished or characterized by their principal emphasis on matters depicting, describing or relating to nudity, explicit sexual conduct (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality, sadomasochistic activity. An establishment, having adults-only items as a substantial or significant portion of its stock, that sells or displays adults-only items for sale to patrons therein. ADULTS-ONLY CABARETS. An establishment or place primarily in the business of featuring topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers, where explicit sexual conduct is depicted and or sexual activity is explicitly or implicitly encouraged or tolerated. ADULTS-ONLY MOTION PICTURE THEATER. An enclosed building used regularly and routinely for presenting adults-only material distinguished or characterized by an emphasis on matter depicting, describing or relating to nudity, explicit sexual conduct (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity, for observation by patron therein. BOOTH. Any enclosure that is specifically offered to patrons of an Adult Business for the private viewing of any adults-only item or movie. Said definition does not include enclosures that are used as private offices by any operator, employee or agent for attending to the tasks of their employment and are not offered for use by the public. CUBICLE. Synonymous with "booth," as defined herein. DOOR. Full, complete, non-transparent closure device that obscures the view or activity taking place within the enclosure. MASSAGE PARLOR. An establishment or place primarily in the business of providing massage services, where explicit sexual conduct is depicted and or sexual activity is explicitly or implicitly encouraged or tolerated. NUDITY. The display of the human male or female genitalia; pubic hair; buttocks; perineum; anal or pubic regions; female breast, at or below the areola thereof, with no covering or with a less than fully opaque covering; or, male genitalia, in a discernible turgid state, with or without covering. OBSCENE. Any material or performance is obscene if: (I ) the average person, applying contemporary adult community standards, would find that, taken as a whole, it appeals to the prurient interest; and (2) the average person, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibition of the genitals; and (3) taken as a whole, it lacks serious literary, artistic, political or scientific value. [Statutory Reference: 720 ILCS 5/11-20] OPERATOR. Any person, (whether said persons be an individual, partner, corporation, joint stock company, fiduciary, officer, director, stockholder, employee, or manager), that conducts, maintains or owns any Adult Business. PATRON. Any customer, patron or visitor to an Adult Business who is not employed by any operator of said establishment. RAP PARLOR. An establishment or place primarily in the business of providing non-professional conversation or similar services for adults, where explicit sexual conduct is depicted and or sexual activity is explicitly or implicitly encouraged or tolerated. ROOM. Synonymous with "booth," as defined herein. SADOMASOCHISTIC ACTIVITY. Flagellation or torture by or upon a nude person; a person clad in undergarments, a mask or bizarre costume. In addition, the condition of being fettered, bound or otherwise physically restrained with the intent to stimulate or arouse sexually the initiator and or the recipient. SAUNA. An establishment or place primarily in the business of providing a steam bath and or massage services, where explicit sexual conduct is depicted and or sexual activity is explicitly or implicitly encouraged or tolerated. SELL. Includes to solicit or receive an order for, to keep or expose for sale and to keep with intent to sell. SEXUAL CONDUCT. Ultimate sex acts (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity. In addition, physical contact, intended to stimulate or arouse sexually the initiator and or the recipient, with a person's unclothed genitalia, buttocks, perineum, anal or pubic regions, or female breast. UNDERAGE. Any person under eighteen ( 18) years of age, the legally minimum age at which one can purchase or view adults-only items. [Statutory Reference: 720 ILCS 5/11-20] WALL SIGN. Any flat sign which is placed against a building or other structure and attached thereto in such manner that only one side is visible. SPECIAL USE PERMIT REQUIRED. (A) No Adult Business may operate within the unincorporated territory of this County without first having obtained a special use permit. A separate special use permit must be acquired for each Adult Business. It shall likewise be unlawful for any such business to sell or offer for sale any adults-only items to violation of the terms and conditions of such special use permit. (B) A special use permit issued by the County is required for and with respect to any building location and premises, within the unincorporated territory of this County, at or upon which an Adult Business is to be operated. (C) All special use permit procedures and criteria are as noted in the Madison County Zoning Code, including but not limited to Sections 93.167, 93.168, 93.169, 93.170 and 93.17 1. However, for purposes of special use permits sought for Adult Businesses, Section 93.167(F) is clarified as specifying a thirty (30) day period within which to submit all additional information and Section 93.167(H) is clarified as specifying a sixty (60) day period within which the appeal will be heard. (D) No special use permit shall be held in existence by the mere payment of fees. : LOCATION RESTRICTIONS. The use of property for an Adult Business can have potentially harmful secondary effects on surrounding areas, and may have a deleterious effect upon the use and enjoyment of adjoining properties. Such secondary effects can include, but not limited to, a tendency to attract an undesirable quantity and quality of transients, to effect property values adversely, to cause an increase in crime, especially prostitution, to contribute to the blighting or down-grading of the surrounding neighborhood/area, and to encourage residents and businesses to move elsewhere. As such, all Adult Business, excepting non-conforming uses as described below, must comply with the following location restrictions: (A) All Adult Businesses shall be located within a "B-3" Highway Business District. (B) No Adult Business shall be located within one thousand (1,000) feet of any residential zone, single or multiple family dwelling, church, school, licensed day-care facility or park. Said distance shall be measured from property line to property line. (C) No more than two Adult Business shall be located within one thousand (1,000) feet, (excluding streets, alleys and public ways), of another Adult Business. Said distance shall be measured from property line to property line. (D) Adult Businesses in violation of paragraphs (A), (B) and (C) shall be permitted as non-conforming uses where said Adult Businesses were established and operated continuously prior to the effective date of this Ordinance, provided that no such Adult Business may be enlarged or increased in size or may be discontinued in use for a period of more than one-hundred eighty (180) days. PHYSICAL LAYOUT. The use of booths, rooms or cubicles in an Adult Business can, by reason or their design and intended use, facilitate the spread of sexually transmitted diseases (both fatal and non-fatal). insofar as the County has a substantial government interest in protecting the public health, safety and welfare of its citizens and all persons within the County, the following standards have been propounded to eliminate the possibility of infection by contagious sexually transmitted diseases. (A) All booths, rooms or cubicles for the private viewing of any adults-only items or movies shall comply with the following standards: 1. They be totally accessible both to and From lighted aisles and public areas of the Adult Business; 2. The bottom surfaces of any doors must measure at least forty-two (42) inches from the floor surfaces; 3. No surfaces intended for seating may be located therein; 4. No doors may be fined with or obstructed by any lock mechanism or other control-type device; 5. They must be separated from adjacent booths, rooms or cubicles and any non-public areas by a solid wall without any opening and extending from the floor to a height of at least six (6) feet; 6. They must be lit by light bulbs of at least twenty-five (25) watts when the Adult Business is open for business; 7. All doors or openings must be sufficiently unobstructed such that an operator, employee or agent may determine the number of persons within any booth, room or cubicle; (B) Only one person shall occupy a booth, room or cubicle at any time; and, at no time, shall the occupant therein engage in any type of sexual conduct resulting in the discharge of any bodily fluids while within a booth, room or cubicle; (C) All wall and floor surfaces must be of a light-colored, non-absorbent, smooth texture that is easily cleaned; (D) All public areas of an Adult Business must be lit by light bulbs of at least sixty (60) watts when the Adult Business is in open for business. PROHIBITED CONDUCT. The operator of any Adult Business shall neither participate in nor suffer or permit any of the following prohibited acts to occur on the premises: (A) Sexual conduct, including but not limited to any demonstration, dance, performance or exhibition on the licensed premises by any employee, agent, entertainer or patron, where said person engages in any of the following conduct: (1) Exposure of the genitalia pubic hair, buttocks, perineum, anal or pubic region; or, (2) Exposure of any device, costume or covering which gives the appearance of or simulates the genitalia, pubic hair, buttocks, perineum, anal or pubic region; or, (3) Exposure of any portion of the female breast at or below the areola thereof; or, (4) Performance or simulated performance of ultimate sexual acts or explicit sexual conduct (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity; or, (5) Fondling of his or her own genitals or the genitalia of another person. (B) Employment or use of the services of any person in or upon the premises of the Adult Business while such person is unclothed or in such attire, costume or clothing so as to result in conduct prohibited in paragraph (A) above. (C) Admission of any underage patron into or upon the premises of the Adult Business. (D) Patronage, frequenting or loitering of any underage person in any Adult Business. (E) Allowance of any underage person to view, accept or otherwise possess any adults-only item on the licensed premises. (F) Employment or use of the services of any underage person in or upon the premises of the Adult Business. (G) Drunkenness, fighting, unlawful games, riotous or disorderly conduct whatsoever, in any premises kept or occupied as an Adult Business. SALES VIOLATIONS. (A) No operator, agent or employee shall knowingly sell, deliver or provide, or offer or agree to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene. [Statutory Reference: 720 ILCS 5/11-20] (B) No operator, agent or employee shall sell, deliver or provide, or offer or agree to sell, deliver or provide any obscene writing, picture, record or other representation or embodiment of the obscene after recklessly failing to exercise reasonable inspection which would have disclosed the nature or content thereof. [Statutory Reference: 720 ILCS 5/11-20] (C) No operator, agent or employee shall create, buy, procure or possess obscene matter or material with intent to disseminate it in violation of this Ordinance or State statute. [Statutory Reference: 720 ILCS 5/11-20] (D) No operator, agent or employee shall advertise or otherwise promote the sale of material represented or held out by him to be obscene, whether or not it is obscene. [Statutory Reference: 720 ILCS 5/11-20] (E) No operator, agent or employee shall knowingly sell, deliver or provide, or offer or agree to sell, deliver or provide any child pornography, as defined by State statute. [Statutory Reference: 720 ILCS 5/11-20.1] (F) No operator, agent or employee shall create, buy, procure or possess any child pornography with intent to disseminate it in violation of this Ordinance or State statute. [Statutory Reference: 720 ILCS 5/11 -20.1] (G) No operator, agent or employee shall advertise or otherwise promote the sale of material represented or held out by him to be child pornography, whether or not it is child pornography. [Statutory Reference: 720 ILCS 5/11-20.1] (H) No person, after purchasing or otherwise obtaining an adults-only item shall sell, deliver or allow any underage person to view an adults-only item. (I) If an operator, agent or employee believes or has reason to believe that a sale, delivery or viewing of any adults-only item is prohibited because the prospective recipient is underage, said operator, agent or employee shall, (before making or allowing such sale, gift, delivery or viewing), demand presentation of some form of positive identification containing proof of age, issued by a public officer in the performance of his official duties. (J)An operator, agent or employee may refuse to sell, deliver or allow any person to view any adults-only item, where said person is unable to produce adequate written evidence of identity and age by production of a document issued by the federal, State, or County government, or subdivision or agency thereof, including but not limited to the following documents: (1) a motor vehicle operator's license; (2) a registration certificate issued under the Federal Selective Act; or (3) an identification card issued to a member of the Armed Forces. (K) Proof that the operator, employee or agent, demanded, examined and reasonably relied upon such written evidence listed in paragraph (J) above in any transaction forbidden by this Ordinance is competent evidence that may be offered as an affirmative defense to a violation of this Ordinance. In order to reasonably rely upon written evidence regarding a patron's identity and age, an operator, agent or employee shall use the prudent judgment of a reasonable and informed person, and shall scrutinize said written evidence of age and identity by doing the following: (1) determine if the physical description and photograph (if any) on the document presented matches that of the presenting person; (2) determine whether the plastic seal on the identification card is intact or broken; and, (3) in the case of an Illinois Driver's License, determine whether the seventh and eighth digits in the driver's license number (excluding the beginning initial) match the stated date of birth located elsewhere on the driver's license. If from the foregoing, a reasonable person would or should doubt the authenticity of the identification card, then the person offering the identification must not be sold, delivered or allowed to view any adults-only items. (L) No operator, agent or employee shall give away or otherwise make available any adults-only item or viewing of any adults-only item for the purpose of evading any provision of this Ordinance, when the sale or viewing of said adults-only item is prohibited shall constitute unlawful selling. (M) Offers or agreements to sell, deliver, provide or allow the viewing of any adults-only item at or within any premises when the sale or viewing of said adults-only item is prohibited shall constitute unlawful selling. (N) The use of any other shift or device to evade any provision of this Ordinance is prohibited and shall constitute unlawful selling. HOURS OF OPERATION. The unlimited operation of an Adult Business can, by reason of their intended use, facilitate secondary effects including but not limited to prostitution, disorderly conduct, performance of sexual acts or conduct in public, traffic congestion and parking problems. Insofar as the County has a substantial government interest in preserving character and preventing deterioration of its neighborhood and minimizing the disruptive effect of such Adult Businesses on neighborhoods, the following limitations on operation times have been propounded: (A) No operator, employee or agent of an Adult Business shall sell, deliver or allow any person to view any adults-only item between the hours of 10:00 p.m. and 10:00 a.m. on Mondays through Saturdays, nor on Sundays or recognized federal holidays. The time referred to shall be either Central Standard Time or Daylight Savings Time, whichever is in effect at the time in this State. (B) No operator, employee or agent of an Adult Business shall permit any person to remain on the premises during the hours specified herein and all patrons shall vacate the licensed premises during the hours specified herein. SIGNS. The unregulated use of signs can result in secondary effects that create dangers to the public in periods of high winds or inclement weather, defeat the sign's informational or advertising functions as competitors escalate sign size and expense to attract patrons, reduce the ability of the public to inter ret the intended message safely and quickly, and destroy the aesthetic quality of the community. Insofar as the County has a substantial government interest in these makers, all signs advertising or promoting the sale of adults-only items must meet the following restrictions: (A) All signs must be flat wall signs. (B) The amount of allowable sign area shall be as stated in the Sign Regulations section of the Madison County Zoning Code. (C) No merchandise or depictions of adults-only items shall be displayed in window areas or any other area that may be viewed from a public street, alley, public way or sidewalk located in front of the building. (D) A one square foot sign may be placed on the door to state the hours of operation and adults-only admittance. (E) All provisions of the Sign Regulation section of the Madison County Zoning Code shall control except as clearly contradicted by this paragraph. In the event that the provisions conflict, this paragraph shall prevail. PUBLIC HEALTH STANDARDS. (A) All premises operated as an Adult Business shall be kept in clean and sanitary condition and shall be kept in full compliance with regulations issued by the County Health Department or the Illinois Department of Public Health. (B) Any Adult Business shall keep and maintain the premises equipped with running hot and cold water, shall provide separate and adequate toilet facilities for both males and females, and shall comply with all health, sanitary, zoning and inspection requirements of the Madison County Code and the State of Illinois. INSPECTIONS. Any Adult Business shall permit representatives of the police department, health department (County or State), fire department, zoning department or building department to Aspect the premises of an Adult Business for the purpose of insuring compliance with this Ordinance and with State statutes, at any time the Adult Business is open for business. AMORTIZATION PERIOD. Adult Businesses in violation of any restriction or regulation contained herein, excepting any location restrictions, must come into full compliance within six (6) months from the effective date of this Ordinance. VICARIOUS LIABILITY. (A) Every act or omission of whatsoever nature constituting a violation of any of the provisions of this Ordinance, by any employee or agent of any operator, shall be deemed and held to be the act of said operator if such act or omission either with the authorization, knowledge or approval of the operator. (B) Every act or omission of whatsoever nature constituting a violation of any of the provisions of this Ordinance, by any employee or agent of any operator, shall be deemed and held to be the act of said operator if such act or omission occurs as a result of the operator’s negligent failure to supervise the conduct of the employee or agent. (C) Such an offense shall be punishable in the same manner as if said act or omission had been done or omitted by the operator personally. PENALTY. (A) In the event that an operator, agent or employee of an Adult Business is guilty of violating any provision of this Ordinance, said person may be subject to a fine not to exceed five hundred ($500) dollars per violation. (B) Any person violating the provisions of this Ordinance shall be subject to an offense for each and every day on which such violation continues, and each day that the offense continues shall be regarded as constituting a separate offense. (C) Any prosecution for violations of this Ordinance does not prohibit the County from pursuing injunctive relief or the State Attorney’s Office from pursuing criminal charges. SEVERABILITY If any clause, section or other part of this Ordinance shall be held invalid or unconstitutional by any Court of competent jurisdiction, the remainder of this Ordinance shall not be affected thereby, but shall remain in full force and effect. ADDITION OF SPECIAL USE The use of property for an Adult Business in a "B-3 " Highway Business District may be desired by a property owner, but could have a potentially harmful influence on other uses in this district. An Adult Business, because of its nature, may have a deleterious effect upon the use and enjoyment of adjacent properties. As such, a special use permit is necessary to insure that these adverse effects will not contribute to the blighting or down-grading of the surrounding neighborhood areas. Thus, in accordance with Section 93.060 of the Madison County Zoning Ordinance, Adult Business will be added as a special use in the "B-3" Highway Business District. "Adult Business" is defined as "an establishment having as a substantial or significant portion of its stock in trade or business activity in a use such as, but not limited to, the following: Adults-Only Bookstores, Adults-Only Motion Picture Theaters, Adult Entertainment Centers, Massage Parlors, Rap Parlors, Adults-Only Cabarets or Adults-Only Saunas, where explicit sexual conduct is depicted and or sexual activity is explicitly or implicitly encouraged or tolerated." For the purpose of this section, "Adults-Only" and other regulated uses ate defined as "items or activities emphasizing, depicting, describing or relating to nudity, explicit sexual conduct (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity." Approved this 6th day of September, 1995. Preface to Model Ordinance Regulating Sexually Oriented Business Ohio Revised Code Section 503.52(B)(2), and 715.55(B) requires the Attorney General to provide legal guidance to townships and municipal corporations at their request concerning the regulation of adult entertainment establishments. The attached Model Ordinance has been prepared by the Attorney General pursuant to the General Assembly’s directive contained in HB 23 and SB 16, and constitutes the legal guidance required to be provided by this Office. While townships and municipal corporations are free to deviate from this Model Ordinance, the degree of any deviation will impact the Attorney General’s duty to assist in the defense of the Model Ordinance in federal court. As stated in R.C. 503.52(E)(2): If a township adopts a resolution without the legal guidance of the attorney general, the attorney general is not being required to provide assistance as described in this division to a prosecuting attorney. If you have questions concerning this Model Ordinance, please contact the Attorney General’s Office at 614-466-4320. [ ] TOWNSHIP [ ] COUNTY, OHIO REGULATIONS GOVERNING SEXUALLY ORIENTED BUSINESSES AND EMPLOYEES Adopted by the Board of Trustees, [ ] Township, [ ] County, Ohio, pursuant to Sections 503.51 and 503.52 of the Ohio Revised Code, or [ ] Municipal Corporation pursuant to Section715.55 of the Ohio Revised Code. Adopted this _____ day of ________________, 20_____ 3 MODEL ORDINANCE REGULATING SEXUALLY ORIENTED BUSINESSES (I) PURPOSE AND INTENT1 (A) In enacting this Ordinance, pursuant to Sections 503.51 and 503.52 of the Ohio Revised Code, the [Township Board of Trustees]2 makes the following statement of intent and findings: (1) Adult entertainment establishments require special supervision from the public safety agencies of [this Township] in order to protect and preserve the health, safety, morals, and welfare of the patrons and employees of the businesses as well as the citizens of [this Township]. (2) The [Township Board of Trustees] finds that adult entertainment establishments are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature. (3) The concern over sexually transmitted diseases is a legitimate health concern of [this Township] that demands reasonable regulation of adult entertainment establishments by [this Township] in the specified manner, and expanded authority for reasonable regulation of adult entertainment establishments by local governments, in order to protect the health and well-being of the citizens. (4) Minimal regulations enacted by [this Township] are a legitimate and reasonable means of accountability to ensure that operators of adult entertainment establishments comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation. (5) There is convincing documented evidence that adult entertainment establishments, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them, cause increased crime, particularly in the overnight hours, and downgrade property values. 1 This section is modified from the purpose and intent version included in House Bill No. 23 (2006) and Senate Bill No. 16 (2007). It is placed here to maintain consistency with the enacting legislation. 2 “[Township Board of Trustees]” and “[this Township]” are used as place holders. The Ordinance must be modified to include the correct titles of the Township or Municipal Corporation. For example, Bloom Township Board of Trustees, and Bloom Township; etc. 4 (6) The [Township Board of Trustees] desires to minimize and control these adverse effects by regulating adult entertainment establishments in the specified manner. And by minimizing and controlling these adverse effects, the [Township Board of Trustees] seeks to 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. (7) The [Township Board of Trustees] has determined that current local zoning and other locational criteria do not adequately protect the health, safety, and general welfare of the people of [this Township] and that expanded regulation of adult entertainment establishments is necessary. (8) It is not the intent of the [Township Board of Trustees] in enacting this act to suppress or authorize the suppression of any speech activities protected by the First Amendment, but to enact content-neutral statutes that address the secondary effects of adult entertainment establishments. (9) It is not the intent of the [Township Board of Trustees] to condone or legitimize the distribution of obscene material, and the [Township Board of Trustees] recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages state law enforcement officials to enforce state obscenity statutes against any such illegal activities in this state. (B) It is the intent of the [Township Board of Trustees] in enacting this Ordinance to regulate in the specified manner adult entertainment establishments in order to promote the health, safety, morals, and general welfare of the citizens of [this Township] and establish reasonable regulations to prevent the deleterious secondary effects of adult entertainment establishments within [this Township]. 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 of the [Township Board of Trustees] in enacting this Ordinance to restrict or deny, or authorize the restriction or denial of, access by adults to sexually oriented materials protected by the First Amendment, or to deny, or authorize the denial of, access by the distributors and exhibitors of adult entertainment and adult materials to their intended market. Neither is it the intent nor effect of the [Township Board of Trustees] in enacting this Ordinance to condone or legitimize the distribution or exhibition of obscene material. 5 (C) Based on evidence concerning the adverse secondary effects of adult uses on communities presented in hearings and in reports made available to the legislature and subsequently adopted by the Ohio General Assembly as findings under Section 3 of House Bill 23 (and on findings incorporated in the cases of Township of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C. (2004), 541 U.S. 774; Township of Erie v. Pap's A.M. (2000), 529 U.S. 277; Barnes v. Glen Theatre, Inc. (1991), 501 U.S. 560; Township of Renton v. Playtime Theatres, Inc. (1986), 475 U.S. 41; Young v. American Mini Theatres (1976), 426 U.S. 50; California v. LaRue (1972), 409 U.S. 109; DLS, Inc. v. Township of Chattanooga (6th Cir. 1997), 107 F.3d 403; East Brooks Books, Inc. v. Township of Memphis (6th Cir. 1995), 48 F.3d 220; Harris v. Fitchville Township Trustees (N.D. Ohio 2000), 99 F. Supp.2d 837; Bamon Corp. v. Township of Dayton (S.D. Ohio 1990), 730 F. Supp. 90, aff'd (6th Cir. 1991), 923 F.2d 470; Broadway Books v. Roberts (E.D. Tenn. 1986), 642 F. Supp. 486; Bright Lights, Inc. v. Township of Newport (E.D. Ky. 1993), 830 F. Supp. 378; Richland Bookmart v. Nichols (6th Cir. 1998), 137 F.3d 435; Deja Vu v. Metro Government (6th Cir. 1999), 1999 U.S. App. LEXIS 535; Threesome Entertainment v. Strittmather (N.D. Ohio 1998), 4 F.Supp.2d 710; J.L. Spoons, Inc. v. Township of Brunswick (N.D. Ohio 1999), 49 F. Supp.2d 1032; Triplett Grille, Inc. v. Township of Akron (6th Cir. 1994), 40 F.3d 129; Nightclubs, Inc. v. Township of Paducah (6th Cir. 2000), 202 F.3d 884; O'Connor v. Township and County of Denver (10th Cir. 1990), 894 F.2d 1210; Deja Vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County (6th Cir. 2001), 2001 U.S. App. LEXIS 26007; State of Ohio ex rel. Rothal v. Smith (Ohio C.P. 2002), Summit C.P. No. CV 01094594; Z.J. Gifts D-2, L.L.C. v. Township of Aurora (10th Cir. 1998), 136 F.3d 683; Connection Distrib. Co. v. Reno (6th Cir. 1998), 154 F.3d 281; Sundance Assocs. v. Reno (10th Cir. 1998), 139 F.3d 804; American Library Association v. Reno (D.C. Cir. 1994), 33 F.3d 78; American Target Advertising, Inc. v. Giani (10th Cir. 2000), 199 F.3d 1241; and other cases and on reports of secondary effects occurring in and around adult entertainment establishments in Phoenix, Arizona (1984); Minneapolis, Minnesota (1980); Houston, Texas (1983); Indianapolis, Indiana (1984); Amarillo, Texas (1977); Garden Grove, California (1991); Los Angeles, California (1977); Whittier, California (1978); Austin, Texas (1986); Seattle, Washington (1989); Oklahoma Township, Oklahoma (1986); Cleveland, Ohio (1977); Dallas, Texas (1997); St. Croix County, Wisconsin (1993); Bellevue, Washington (1998); Newport News, Virginia (1996); Tucson, Arizona (1990); St. Paul, Minnesota (1988); Oklahoma Township, Oklahoma (1986 and 1992); Beaumont, Texas (1982); New York, New York (1994); Ellicottville, New York (1998); Des Moines, Iowa (1984); Islip, New York (1980); Adams County, Colorado (1987); Manatee County, Florida (1987); New Hanover County, North Carolina (1989); Las Vegas, Nevada (1978); Cattaraugas County, New York (1998); Cleburne, Texas (1997); Dallas, Texas (1997); El Paso, Texas (1986); New York Times Square study (1994); Report to ACLJ on the Secondary Impacts of Sex Oriented Businesses (1996); findings from the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota); and on testimony to Congress in 136 Cong. Rec. S. 8987; 135 Cong. Rec. S. 14519; 135 Cong. Rec. S. 5636, 134 Cong. Rec. E. 3750; and also on findings from the paper entitled “Stripclubs According to Strippers: Exposing Workplace Sexual Violence,” by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, 6 Minnesota; and from “Sexually Oriented Businesses: An Insider's View,” by David Sherman, presented to the Michigan House Committee on Ethics and Constitutional Law, Jan. 12, 2000; and from various other police reports, testimony, newspaper reports, and other documentary evidence), and subsequent findings in Sensations, Inc. v. City of Grand Rapids, Michigan Decency Action Council (6th Cir. 2008), 526 F.3d 291; 729, Inc. v. Kenton County Fiscal Court (6th Cir. 2008), 515 F.3d 485; and Andy's Rest. & Lounge, Inc. v. City of Gary (7th Cir. 2006), 466 F.3d 550, and the [Township Board of Trustees’] independent review of the same) the [Township Board of Trustees] finds: (1) Adult entertainment establishments lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. (2) Certain employees of adult entertainment establishments, as defined in this Ordinance as adult theaters and cabarets, engage in a higher incidence of certain types of illicit sexual behavior than employees of other establishments. (3) Sexual acts, including masturbation and oral and anal sex, occur at adult entertainment establishments, especially those that provide private or semiprivate booths or cubicles for viewing films, videos, or live sex shows. The “couch dances” or “lap dances” that frequently occur in adult entertainment establishments featuring live nude or seminude dancers constitute or may constitute the offense of “engaging in prostitution” under Section 2907.25 of the Revised Code. (4) Offering and providing private or semi-private booths or cubicles encourages such activities, which creates unhealthy conditions. (5) Persons frequent certain adult theaters, adult arcades, and other adult entertainment establishments for the purpose of engaging in sexual activity within the premises of those adult entertainment establishments. (6) Numerous 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 salmonella, campylobacter and shigella infections, chlamydial, myoplasmal and ureoplasmal infections, trichomoniasis, and chancroid. (7) Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982, 2,200 in 1983, 4,600 in 1984, 8,555 in 1985, and 253,448 through December 31, 1992. (8) A total of 10,255 AIDS cases had been reported in Ohio as of January 1999. Ohio has required HIV case reporting since 1990, and the reported information shows 7,969 people living with (HIV) (4,213) and (AIDS) (3,756) in the state. 7 (9) Since 1981 and to the present, there have been an increasing cumulative number of persons testing positive for the HIV antibody test in Ohio. (10) The number of cases of early (less than one year) syphilis in the Unites States reported annually has risen. 33,613 cases were reported in 1982, and 45,200 cases were reported through November 1990. (11) The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990. (12) The Surgeon General of the United States in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, and exposure to infected blood and blood components, and from an infected mother to her newborn. (13) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. (14) Sanitary conditions in some adult entertainment establishments 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. (15) The findings noted in divisions (C)(1) to (14) of this section raise substantial governmental concerns. (16) Adult entertainment establishments have operational characteristics that require or mandate subject them to reasonable government regulation in order to protect those substantial governmental concerns. (17) The enactment of this Ordinance will promote the general welfare, health, morals, and safety of the citizens of this Township. 8 (II) DEFINITIONS3 (A) As used in this Ordinance: (1) “adult bookstore,” “adult cabaret,” “adult motion picture theater,” “adult video store,” “characterized by,” “nude,” “nudity,” “state of nudity,” “seminude,” “state of seminudity,” “sexual device,” “sexual device shop,” “sexual encounter center,” “specified anatomical areas,” and “specified sexual activity” have the same meanings as in Section 2907.40 of the Revised Code; and (2) “adult arcade,” “adult entertainment,” “adult entertainment establishment,” “adult novelty store,” “adult theater,” “distinguished or characterized by their emphasis upon,” “nude or seminude model studio,” “regularly features,” “regularly shown,” and “sexual encounter establishment” have the same meanings as in Section 2907.39 of the Revised Code. (B) “EMPLOYEE” means any individual on a full-time, part-time, or contract basis, regardless of whether the individual is denominated an employee, independent contractor, agent, or otherwise, bud does not include an individual exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises. (C) “IMMEDIATE FAMILY” means a person's spouse residing in the person's household, parents, siblings of the whole or of the half blood, and children, including adopted children. (D) “LICENSE” means a license to act or operate a sexually oriented business, issued pursuant to this Ordinance. (E) “LICENSEE” means a person in whose name a license to operate has been issued, as well as the individual(s) designated on the license application as principally responsible for the operation of the sexually oriented business. With respect to an Employee license issued under this Ordinance, licensee means an employee as defined by Section (II), sub-section (B) above in whose name a license has been issued authorizing employment at sexually oriented business. (F) “OPERATE” means to control or hold primary responsibility for the operation of a sexually oriented business, either as a business entity, as an individual, or as part of a group of individuals with shared responsibility. “Operate” or “Cause to be Operated” shall mean to cause to function or to put or keep in operation. 3 The definitions used in Section (II) must be included. Additional definitions may be included that are not listed here if additional zoning requirements are imposed. These definitions and applicable zoning requirements should be included based on the Township, Village, etc. past practices and history of zoning. Additional zoning requirements and definitions are too location specific to be included here. Please refer to Appendix I for areas subject to zoning restrictions. 9 (G) “OPERATOR” means any individual on the premises of a sexually oriented business who causes the business to function or who puts or keeps in operation the business or who is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business. (H) “PATRON” means any individual on the premises of a sexually oriented business, except for any of the following: (1) An operator or an employee of the sexually oriented business; (2) An individual who is on the premises exclusively for repair or maintenance of the premises or for the delivery of goods to the premises; (3) A public employee or a volunteer firefighter emergency medical services worker acting within the scope of the public employee’s or volunteer’s duties as a public employee or volunteer’s duties as a public employee or volunteer. (I) “PERSON” means an individual, proprietorship, partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character. (J) “PREMISES” means the real property on which the sexually oriented business is located and all appurtenances to the real property, including, but not limited, to the sexually oriented business, the grounds, private walkways, and parking lots or parking garages adjacent to the real property under the ownership, control, or supervision of the owner or operator of the sexually oriented business. (K) “SEXUALLY ORIENTED BUSINESS” means an adult arcade, adult bookstore, adult cabaret, adult entertainment establishment, adult motion picture theater, adult novelty store, adult theater, adult video store, sexual device shop, sexual encounter center, and sexual encounter establishment as defined by Section (II), sub -section (A) of this Ordinance, but does not include a business solely by reason of its showing, selling, or renting materials that may depict sex. (L) “SPECIFIED CRIMINAL ACTIVITY” means any of the following offenses: (1) Prostitution or promoting prostitution; soliciting; loitering to engage in solicitation; sexual performance by a child; public lewdness; indecent exposure; indecency with a child; sexual assault; molestation of a child; or any similar offenses to those described above under the criminal or penal code of any local jurisdiction, state, or country; 10 (2) for which: (a) less than two 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; or (b) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense. (3) The fact that a conviction is being appealed shall not prevent such conviction from constituting a specified criminal activity as defined in this section. (M) “TRANSFER OF OWNERSHIP OR CONTROL” of a sexually oriented business shall mean any of the following: (1) the sale, lease, or sublease of the business; (2) the transfer of securities which constitute a controlling interest in the business whether by sale, exchange, or similar means; or (3) the establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. (III) LICENSE REQUIRED (A) No person shall:4 (1) Operate a sexually oriented business as defined by Section (II), sub- section (K) without a valid sexually oriented business license issued by the [Township] pursuant to this Ordinance. (2) In connection with operating a sexually oriented business, retain the services of a person as an employee, as defined in this Ordinance, who is not licensed as a sexually oriented business employee by the [Township] pursuant to this Ordinance. (B) Any person who violates sub-section (A)(1) above shall be guilty of a [insert misdemeanor level of offense] for a first offense, and a [insert increased misdemeanor level of offense] for a second offense. 4 You may also choose to license the employee. A sample employee license application is included in this model, but it is not required. 11 (C) A violation of sub-section (A)(2) above shall be a ground for the suspension of a sexually oriented business license as provided for in Section (IX) of this Ordinance. (D) No person shall act as an employee, as defined in this Ordinance, on the premises of a sexually oriented business without having secured a sexually oriented business employee license (“employee license”) pursuant to this Ordinance. (E) A violation of this section shall be a ground for the suspension of a sexually oriented business employee license as provided for in Section (IX) of this Ordinance. (IV) APPLICATION FOR LICENSE5 (A) An original or renewal application for a sexually oriented business license shall be submitted to the [Township Board of Trustees] or its designee on a form provided by the [Township Board of Trustees]. The [Township]’s application may require and the applicant shall provide such information as reasonably necessary (including fingerprints) to enable the [Township] to determine whether the applicant meets the qualifications established in this Ordinance. (B) A filing fee shall be paid at the time of filing the application, as follows: [Reasonable fees as determined by the Township] 6 (C) An application for a sexually oriented business license shall identify and be signed by the following persons: (1) If the business entity is owned by an individual, that individual. (2) If the business entity is owned by a corporation, each Officer or Director of the corporation, any individual owning or controlling more than fifty (50) percent of the voting shares of the corporation, and any person with an ownership interest in the corporation who will be principally responsible for the operation of the proposed sexually oriented business. (3) If the business entity is owned by a partnership (general or limited), a joint venture, or any other type of organization where two or more persons share in the profits and liabilities of the organization, each partner (other than limited partners); and any other person entitled to share in the profits of the organization, whether or not such person is also obligated to share in the liabilities of the 5 You may provide for the following licensing criteria, but it is not required. These regulations are included as a listing of constitutionally viable possibilities. 6 The fee charged is at the discretion of the political subdivision. HOWEVER, the fee must be reasonable and only used to offset the costs of administering and ensuring compliance with this Ordinance. Fees associated with the processing of the license application may be non-refundable. However, the remaining fees for administering the license must be refunded if the license application is denied. 12 organization, who will be principally responsible for the operation of the proposed sexually oriented business. (D) An application for a sexually oriented business license must designate one or more individuals who are to be principally responsible for the operation of the proposed sexually oriented business, if a license is granted. At least one person so designated must be involved in the day-to-day operation of the proposed sexually oriented business on a regular basis. Each person so designated, as well as the business entity itself, shall be considered a license applicant, must qualify as a licensee under this Ordinance, and shall be considered a licensee if a license is granted. (E) An application for a sexually oriented business license shall be completed according to the instructions on the application form, which shall require the following: (1) If the applicant is: (a) an individual, state the legal name and any aliases of such individual; or (b) a partnership, state the complete name of the partnership and all of its partners and whether the partnership is general or limited, and provide a copy of the partnership agreement, if any; or (c) a joint venture, or any other type of organization where two or more persons share in the profits and liabilities of the organization, state the complete name of the organization and provide a copy of the legal document establishing the organization, if any; or (d) a corporation, state the complete name of the corporation and the date of its incorporation, provide evidence that the corporation is in good standing under the laws of its state of incorporation, and state the names and capacities of all Officers and Directors, the name of the registered corporate agent, and the address of the registered office for service of process. (2) If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, state the fictitious name to be used and submit copies of documentation evidencing the registration of the business name under applicable laws. (3) State whether any applicant has been convicted of a specified criminal activity as defined in this Ordinance, and if so, the specified criminal activity involved and the date, place, and jurisdiction of each such conviction. (4) State whether any applicant has had a previous license under this Ordinance or other similar regulation of another jurisdiction denied, suspended or revoked, including the name and location of the sexually oriented business for which the permit was denied, suspended or revoked, as well as the date of the 13 denial, suspension or revocation; and state whether the applicant has been a partner in a partnership or an officer, or fifty (50) percent or greater owner of a corporation licensed under this Ordinance whose license has previously been denied, suspended or revoked, including the name and location of the business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation. (5) State whether any applicant holds any other licenses under this Ordinance or other similar regulation from this or another jurisdiction and, if so, the names and locations of such other licensed businesses. (6) State the location of the proposed sexually oriented business, including a legal description of the property (i.e., permanent parcel number), street address, and telephone number(s), if any. (7) State the mailing address and residential address of each applicant and each person signing the application. (8) Submit a recent photograph of each applicant who is a natural person, taken by the [designate appropriate agency] that clearly shows the applicant’s face. (9) Submit the fingerprints of each applicant who is a natural person, recorded by the [designate appropriate agency]. (10) For any applicant who is a natural person, describe and identify the location of any tattoos on such person’s face, arms, legs, or hands, or any other anatomical area that normally would be visible when such person is on the premises of the proposed sexually oriented business. (11) State the driver’s license number and Social Security number of each applicant who is a natural person and each person signing the application, or, for an applicant that is not a natural person, the applicant’s federally issued tax identification number. (12) Submit proof that each applicant who is a natural person is at least eighteen (18) years old. (13) Submit a sketch or diagram showing the configuration of the premises of the sexually oriented business. The diagram shall also designate the place at which the adult business license will be conspicuously posted, if granted. The sketch or diagram need not be professionally prepared, but it 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 (6) inches. (14) The above-required disclosures facilitate the police investigation into the applicant’s criminal background regarding crimes of a sexual nature so t hat the [Township] can determine whether the Ordinance’s civil disabilities provisions 14 apply. Such provisions exist to combat the sex crimes connected with sexually oriented establishments by temporarily prohibiting those recently convicted of such crimes from employment with those establishments. In addition, the required disclosures ensure continuing compliance with the Ordinance’s licensing and permitting requirements. (15) The information gathered pursuant to the above provisions constitute protected private information and are exempt from Ohio’s Public Records Act in accordance with the decision of the Sixth Circuit Court of Appeals in DejaVu of Cincinnati v. Union Township (6th Cir. 2005), 411 F.3d 777. (V) ISSUANCE OF A LICENSE7 (A) Upon receipt of an application for a sexually oriented business license, the [applicable agency]8 or its designee shall promptly request that the [applicable agency] review the information provided in the application concerning the criminal background of the applicant(s) and that the [applicable agency] shall transmit the results of its investigation in writing to the [applicable agency] or its designee within five (5) days of the completion of its investigation. (B) Within five (5) days of receipt of an application for a sexually oriented business, the [applicable agency] or its designee shall notify the [Township] Fire Chief and the Health Commissioner of such application. In making such notification, the [applicable agency] or its designee shall request that the Fire Chief and Health Commissioner promptly inspect the premises for which the sexually oriented business license is sought to assess compliance with the regulations under their respective jurisdictions. (C) The Fire Chief shall provide to the [applicable agency] or its designee a written certification of whether the premises are in compliance with the [Township] Fire Regulations within ten (10) days of receipt of notice of the application. (D) The [applicable agency] or its designee shall commence the inspection of the premises for which a sexually oriented business license is sought promptly upon receipt of the application, and shall complete, within ten (10) days after receipt of the application, a written certification of whether the premises are in compliance with the [Township] Zoning Ordinance, the [Township] Property Maintenance Code, and the provisions of this Ordinance related to physical characteristics of the premises, and whether the [Township] has received notice from any state or county agency of the premises being in violation of any applicable state building or property codes. 7 Each step of the process is not necessarily required (i.e. inspection process) and is left t o your discretion. HOWEVER, the timeframes included in this section ARE required if the applicable sections are used. Also, as noted earlier, “zoning restrictions” may be included. 8 The political subdivision must determine who will review the applications, complete the background investigations, etc.. “Applicable agency” is a term of art. The applicable agency may be an agency, department, unit, official, employee, or officer and more than one entity or person. 15 (E) Within twenty-one (21) days after receipt of a completed sexually oriented business license application, the [applicable agency] or its designee shall approve or deny the issuance of a license. The [applicable agency] or its designee shall approve the issuance of a license to an applicant unless he/she determines that one or more of the following findings is true: (1) An applicant who is a natural person is under eighteen (18) years of age. (2) An applicant has failed to provide all information and documents required for issuance of the license as requested on the application form, or has provided information or documents as requested on the application that are insufficient on their face; provided, however, that no license shall be denied solely on the ground that an applicant has refused to disclose its social security number in accordance with the provisions of the Privacy Act of 1974, Pub. L. No. 93-579, § 7(a)(1). (3) An applicant has, within the preceding twelve (12) months, been denied a sexually oriented business license by any jurisdiction or has had a license to operate a sexually oriented business revoked by any jurisdiction. (4) An applicant has been convicted of a specified criminal activity as defined in this Ordinance. (5) The proposed sexually oriented business would violate or fail to be in compliance with any provisions of this Ordinance, the [Township] Zoning Ordinance, the [Township] Property Maintenance Code, or state statute or regulation. (6) The application and investigation fee required by this Ordinance has not been paid. (7) An applicant is in violation of or not in compliance with any provision of this Ordinance, except as provided in Section (V), sub-section (F) of this section. (F) If the [applicable agency] or its designee determines that one or both of the following findings is true, the license issued pursuant to this section shall contain a requirement that the licensee correct all deficiencies specified within 120 days of the date the license is issued:9 (1) The results of inspections of the premises by the Fire Chief or its designee or the Health Commissioner or its designee indicate that the premises are not in compliance with applicable laws and regulations under their respective jurisdictions. (2) An applicant is overdue in payment to the Township of taxes, fees, fines, or penalties assessed against or imposed upon him/her in relation to any business, which are not the subject of a pending appeal or other legal challenge. 9 Section (F) is purely discretionary and is included only as an option to the Township. 16 (G) A sexually oriented business license shall state on its face the name of the applicant, the expiration date, and the address of the licensed sexually oriented business. All sexually oriented business licenses shall be posted in a conspicuous place at or near the entrance to the business so that they may be easily read at any time. (H) The [applicable agency] or its designee shall advise the applicant in writing within three (3) days of the [applicable agency’s] decision of the reasons for any license denial. If the [Township] finds, subsequent to denial, that the basis for the denial of the license has been corrected or abated, the applicant may reapply. (VI) EMPLOYEE LICENSE APPLICATION10 (A) An application for an Employee license shall be submitted to the [applicable agency] or its designee on a form provided by the [applicable agency]. The application may request, and the applicant shall provide, such information as reasonably necessary (including fingerprints) to enable the [Township] to determine whether the applicant meets the qualifications established in this Ordinance. (B) An application for an employee license shall be completed according to the instructions of the application form, which shall require the following: (1) State the applicant’s name and any other names (including “stage” names) or aliases used by the applicant. (2) State the applicant’s date and place of birth. (3) State the applicant’s height, weight, and hair and eye color. (4) Submit a recent photograph of the applicant, taken by the [applicable agency], which clearly shows the applicant’s face. (5) Submit the applicant’s fingerprints, recorded by the [applicable agency]. (6) Describe and identify the location of any tattoos on the applicant’s face, arms, legs, or hands, or any other anatomical area that normally would be visible when the applicant is on the premises of the proposed sexually oriented business. (7) State the applicant’s present residence address and telephone number. (8) State the applicant’s present or intended business address and telephone number. (9) State the applicant’s driver’s license number and Social Security number. (10) Submit proof that the applicant is at least eighteen (18) years old. 10 As noted previously, the Township has the discretion to include an employee license regulation; HOWEVER, if used, the timelines outlined in Sections (V) and (VII) are REQUIRED. 17 (11) Provide a statement detailing the sexually oriented business-related license history of the applicant for the five (5) years immediately preceding the date of the filing of the application, including whether such applicant previously operated or is seeking to operate a sexually oriented business, in this or any other jurisdiction, and whether the applicant has ever had a sexually oriented business-related license, permit, or authorization to do business denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the name of the issuing or denying jurisdiction and describe in full the reason for the denial, revocation, or suspension. Attach a copy of any order of denial, revocation, or suspension. (12) State whether the applicant has been convicted of a specified criminal activity as defined in this Ordinance and, if so, the specified criminal activity involved and the date, place and jurisdiction of each such conviction. (13) The above-required disclosures facilitate the police investigation into the applicant’s criminal background regarding crimes of a sexual nature so that the [Township] can determine whether the Ordinance’s civil disabilities provisions apply. Such provisions exist to combat the sex crimes connected with sexually oriented establishments by temporarily prohibiting those recently convicted of such crimes from employment with those establishments. In addition, the required disclosures ensure continuing compliance with the Ordinance’s licensing and permitting requirements. (14) The information gathered pursuant to the above provisions constitutes protected private information and is exempt from Ohio’s Public Records Act in accordance with the decision of the Sixth Circuit Court of Appeals in DejaVu of Cincinnati v. Union Township (6th Cir. 2005), 411 F.3d 777. (VII) ISSUANCE OF SEXUALLY ORIENTED BUSINESS EMPLOYEE LICENSE (A) Upon the filing of a completed application for an employee license, the [applicable agency] or its designee shall issue a license to said applicant immediately. (B) Within five (5) days of receipt of a completed application for an employee license, the [applicable agency] or its designee shall request that the [applicable agency] initiate an investigation of the information provided in the application concerning the criminal background of the applicant. The [applicable agency] shall document the results of its investigation in writing within five (5) days of the completion of its investigation and transmit this writing to the [applicable agency] or its designee. (C) Within ten (10) days after completion of the criminal background investigation of the applicant, the [applicable agency] or its designee shall either affirm the prior issuance of the license or revoke the license. The [applicable agency] or its designee shall affirm the prior issuance of a license to an applicant unless he/she determines that one or more of the following findings are true: 18 (1) The applicant has failed to provide all information and documents required for issuance of the license as requested on the application form, or has provided information or documents as requested on the application that are insufficient on their face; provided, however, that no license shall be denied solely on the ground that an applicant has refused to disclose its social security number in accordance with the provisions of the Privacy Act of 1974, Pub. L. No. 93-579, § 7(a)(1). (2) The applicant is under eighteen (18) years of age. (3) The applicant has been convicted of a specified criminal activity as defined in this Ordinance. (4) The employee license is to be used for employment in a business prohibited by local, state, or federal law, statute, rule or regulation. (5) The applicant has, within the preceding twelve (12) months, been denied an employee license by any jurisdiction or has had an employee license revoked by any jurisdiction. (D) If the employee license is revoked, the [applicable agency] or its designee shall advise the applicant in writing within three (3) days of the reason(s) for any such revocation. (VIII) EXPIRATION AND RENEWAL OF LICENSE11 (A) Each license issued pursuant to this Ordinance shall expire one year from the date of issuance and may be renewed by making application as provided in this section. Application for renewal shall be made no more than ninety (90) days and no less than twenty-one (21) [this should conform with the time frame set out in Section (V), sub - section (E) above] days before the expiration date. If application is made less than twenty-one (21) days before the expiration date, the license will not be extended pending a decision on the application, but will expire on its normal expiration date. (B) An application for renewal of a sexually oriented business license shall be submitted to the [applicable agency] or its designee on a form provided by the [applicable agency]. The completed renewal application shall describe any changes or additions to, or deletions from, the information provided in the applicant’s initial license application pursuant to this Ordinance. Copies of any document or material submitted in connection with the initial license application shall accompany the completed renewal application that has been revised or such application shall be revised to reflect any change in circumstances or conditions. Sketches or diagrams submitted with an initial sexually oriented business license application may be resubmitted with subsequent renewal applications, provided that the applicant certifies in writing that the sketch or diagram still depicts the premises accurately. 11 The renewal period may be longer than one year; however, all other dates regarding the processing of a renewal must be followed as indicated. 19 (C) The [applicable agency] or its designee shall make determinations concerning the approval of license renewals based on the same criteria and time mandates used to evaluate applications for new licenses under this Ordinance. (D) The [applicable agency] or its designee shall advise the applicant in writing within three (3) days of the reason(s) for any denial of a license renewal. (E) An application for renewal of an employee license shall be submitted to the [applicable agency] or its designee on a form provided by the [applicable agency]. The completed renewal application shall describe any changes or additions to, or deletions from, the information provided in the applicant’s initial license application pursuant to this Ordinance. Copies of any document or material submitted in connection with the initial license application shall accompany the completed renewal application that has been revised or requires revision to reflect any change in circumstances or conditions. (F) When the [Township] denies an application for renewal of a license, the applicant shall not be issued another license for one year from the date of denial. However, if the [Township] finds, subsequent to denial, that the basis for the denial of the renewal license has been corrected or abated, the applicant may reapply prior to the expiration of the one year period. (IX) SUSPENSION (A) The [Township] shall suspend a sexually oriented business license for a period not to exceed thirty (30) days if it determines that a licensee: (1) has violated or is not in compliance with any section of this Ordinance; or (2) has knowingly allowed an employee to violate or fail to comply with any section of this Ordinance. (B) The [Township] shall suspend a sexually oriented business license for a period not to exceed thirty (30) days if it determines that a licensee or its employee or agent has refused to allow, or has prohibited or has interfered with, an inspection of the licensed sexually oriented business premises as authorized by Section (V), sub-sections (B) – (C) of this Ordinance or any other reasonable inspection. (C) The [Township] shall suspend an employee license for a period not to exceed thirty (30) days if it determines that a licensee has violated or is not in compliance with any section of this Ordinance. (D) The [applicable agency] or its designee shall advise the licensee in writing within three (3) days of the reason(s) for any suspension. 20 (X) REVOCATION (A) The [Township] shall revoke a sexually oriented business license or employee license if a cause of suspension under this Ordinance occurs and the license has been suspended two times within the preceding twelve (12) months. (B) The [Township] shall revoke a sexually oriented business license if it determines that: (1) a licensee failed to provide all information and documents required for issuance of the license as requested on the application form, or provided information or documents as requested on the application that are false; (2) the licensee(s) failed to comply with any requirement stated in the license, pursuant to this Ordinance, to correct specified deficiencies within 120 days; (3) a licensee has knowingly allowed possession, use, or sale of controlled substances on the premises; (4) a licensee has knowingly allowed prostitution, solicitation, or the commission of a felony on the premises; (5) a licensee knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended; (6) a licensee has knowingly allowed any act of specified sexual activity, as defined in this Ordinance, to occur in or on the licensed premises; (7) a licensee has been convicted of a specified criminal activity, as defined in this Ordinance, during the term of the license; or (8) a licensee is delinquent in payment to the Township, County, or State for any taxes or fees that were assessed or imposed in relation to any business. (C) The [Township] shall revoke an employee license if it determines that: (1) the licensee failed to provide all information and documents required for issuance of the license as requested on the application form, or provided information or documents as requested on the application that are false; (2) the licensee has knowingly acted as an employee on the premises of a sexually oriented business during a period of time when the licensee’s license was suspended; or (3) the licensee has been convicted of a specified criminal activity, as defined in this Ordinance during the term of the license. 21 (D) The [applicable agency] or its designee shall advise the licensee in writing within three (3) days of the reason(s) for any revocation. (E) When the [Township] revokes a license pursuant to sub-sections (A), (B)(3) – (7), (C)(2) or (3) above, the licensee shall not be issued another license for one (1) year from the date the revocation became effective. (F) When the [Township] revokes a license pursuant to sub-sections (B)(1), (B)(8) or (C)(1) above, the applicant may be granted a license if the basis for the revocation has been corrected or abated and at least thirty (30) days have elapsed since the date the revocation became effective.12 (XI) APPEAL RIGHTS (A) Any denial, suspension, or revocation of a license under this Ordinance may be appealed to the [Township Board of Trustees]13 by written notice within ten (10) days of such denial, suspension, or revocation. Unless the applicant requests a longer period, the [Township Board of Trustees] must hold a hearing on the appeal within twenty-one (21) days and must issue a decision affirming or reversing the denial, suspension, or revocation within five (5) days after the hearing. During the time between the date of the denial, suspension, or revocation of a license and the date of the [Township Board of Trustees] decision affirming or reversing the denial, suspension, or revocation, the status quo of the license holder or applicant shall be maintained.14 (B) In the event that the [Township Board of Trustees] denies, suspends, or revokes a new or renewal license under this Ordinance, or any action taken on an appeal that is provided by this ordinance, the applicant may pursue an appeal to [______] County Court of Common Pleas pursuant to Revised Code Chapter 2506. The failure of the [Township Board of Trustees] to render a decision on the application within the time prescribed in Section (IX), sub-section (A) above shall be considered an affirmance of the denial, suspension, or revocation of the license and the applicant may pursue an appeal to [________] County Court of Common Pleas pursuant to Revised Code Chapter 2506. This appeal provision is intended to comply with the requirement for prompt judicial review stated by the United States Supreme Court in Township of Littleton, Colorado v. Z. J. Gifts D-4 (2004), 541 U.S. 774. (C) Any licensee lawfully operating a sexually oriented business prior to the denial of a license renewal application, or the suspension or revocation of a license, shall retain said license and all privileges attendant thereto, subject to all other terms of this 12 This subparagraph and the previous subparagraph are used to indicate that the political subdivision may decide to allow some of these offenses to be remedied. 13 Or designated body – Board of Trustees, etc. Please note: it is recommended that the Township begin with subparagraph (B) and avoid administrative appeals. In other words, an original decision should be made by the Township and any appeal made directly to the court of common pleas. 14 This subparagraph may be deleted if the subdivision directs that the appeal be filed directly with the common pleas court. 22 Ordinance, so that the status quo of the licensee is maintained during the pendency of an appeal to the [Township Board of Trustees] of a decision rendered under this Ordinance and during the entire time required for the court to rule on the appeal pursuant to sub- section (B) above. (D) Any licensee lawfully acting as an employee in a sexually oriented business prior to the denial of a license renewal application, or the suspension or revocation of a license, shall retain said license and all privileges attendant thereto, subject to all other terms of this Ordinance, so that the status quo of the licensee is maintained during the pendency of an appeal to the [Township Board of Trustees] of a decision rendered under this Ordinance and during the entire time required for the court to rule on the appeal pursuant to sub-section (B) above. (E) In the event that any judicial review of the denial of a new or renewal license application or the revocation or suspension of a license is still pending thirty (30) days before the expiration date of any license, the licensee may file a renewal license application with the [applicable agency] or its designee pursuant to this Ordinance. In the event that an application for renewal of a license is denied and the applicant seeks judicial review of that denial, the [Township] has the right to consolidate such review with any pending judicial actions in regards to the previous denial, suspension or revocation of a license. (F) If, during the pendency of any appeal pursued under sub-section (B) above, there are additional denials of a renewal license application or suspensions or revocations of that license, the [Township] has the right to consolidate the appeal pursued under Section (XI), sub-section (B) above for the additional denials, suspensions or revocations with any pending appeal for that same licensee. (XII) TRANSFER OF LICENSE (A) A sexually oriented business license is not transferable from one licensee to another or from one location to another. Any purported transfer of a sexu ally oriented business license shall automatically and immediately revoke that license. (B) An employee license is not transferable from one licensee to another, but the use of the license by the individual to whom it was issued may be transferred from one licensed sexually oriented business to another such licensed establishment during the term of the license, provided that the licensee gives written notice of such transfer to the [applicable agency] or its designee within fifteen (15) days of such transfer. 23 (XIII) ADDITIONAL REGULATIONS CONCERNING THE OPERATION OF A SEXUALLY ORIENTED BUSINESS (A) Sexual Activity, Live Entertainment and Performances15 (1) No person shall, in a sexually oriented business, appear before a patron or patrons in a state of nudity, regardless of whether such public nudity is expressive in nature.16 (2) Any employee appearing on the premises of a sexually oriented business in a state semi-nudity, as defined by this Ordinance, must be on a stage that is at least [zero (0) up to twenty-four (24)] inches from the floor, and at a distance at least [zero (0) up to thirty-six (36)] inches from all parts of a clearly designated area in which patrons will be present. (3) All live entertainment and performances in a sexually oriented business must take place on a stage that is at least [zero (0) up to twenty-four (24)] inches from the floor and a distance of at least [zero (0) up to thirty-six (36)] inches from all parts of a clearly designated area in which patrons will be present. (4) The interior of the premises shall be configured in such a manner that there is a an unobstructed view from an operator’s station of every area of the premises, including the interior of each viewing room but excluding restrooms, to which any patron is permitted access for any purpose. If the premises has two (2) or more operator’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 operator’s stations. It is the duty of the operator to ensure that at least one employee is on duty and situated in an operator’s station at all times that any patron is on the portion of the premises monitored by the operator station. It shall be the duty of the operator, and it shall also be the duty of any employees present on the premises, to ensure that the view area specified in this paragraph remains unobstructed by any doors, curtains, walls, merchandise, display racks or other materials or enclosures at all times that any patron is present on the premises.17 (5) No employee shall knowingly or intentionally, in a sexually oriented business, appear within view of any patron in a nude or semi-nude condition 15 Section (XIII), sub-sections (A)(9) and (A)(10) may not be removed from this Ordinance unless no option of sub-sections A(1)-(8) are included. Sub-sections (A)(1) – (8) are optional and may be removed from this ordinance. 16 If Section (III), sub-section (A)(1) is not included in this Ordinance, then Section (III), sub - section (A)(2) must include “state of nudity” in addition to “semi-nudity.” 17 Sensations, Inc. v. City of Grand Rapids, Michigan Decency Action Council (6th Cir. 2008), 526 F.3d 291. 24 unless the employee, while nude or semi-nude, shall be and remain at least [zero (0) up to six (6)] feet from all patrons.18 (6) Employees in a sexually oriented business shall maintain a minimum distance of [zero (0) up to five (5)] feet from areas on the business premises occupied by patrons for a minimum of [zero (0) up to sixty (60)] minutes after the employee appears in a nude or semi-nude condition within view of any patron. This regulation is not intended to prohibit ingress or egress from the premises. It is intended to control illicit sexual contact and reduce the incidents of prostitution occurring in the establishments.19 (7) No patron who is not a member of the employee’s immediate family shall knowingly touch an employee while that employee is nude or seminude or touch the clothing of any employee while that employee is nude or semi-nude.20 (8) No employee who regularly appears nude or seminude on the premises of a sexually oriented business and while nude or seminude, shall knowingly touch a patron who is not a member of the employee’s immediate family or another employee who is not a member of the employee’s immediate family or the clothing of a patron who is not a member of the employee’s immediate family or another employee who is not a member of the employee’s immediate family or allow the patron who is not a member of the employee’s immediate family or another employee who is not a member of the employee’s immediate family to touch the employee or the clothing of the employee.21 (9) The provisions of sub-sections (A)(1) – (8) shall not apply to an employee’s use of any restroom or any single-sex dressing room that is accessible only to employees. (10) In addition, sub-sections (A)(1) – (8) shall not apply to live performances in which the patron and employee are separated by an impenetrable barrier such as, but not limited too, glass or Plexiglas. (B) Minors Prohibited. No person under the age of 18 years shall be permitted on the premises of a sexually oriented business. (C) Hours of Operation. No sexually oriented business shall be or remain open for business between 12:00 midnight and 6:00 a.m. on any day, except that a sexually oriented business that holds a liquor permit pursuant to Chapter 4303 of the Revised 18 Sensations, Inc. v. City of Grand Rapids, Michigan Decency Action Council (6th Cir. 2008), 526 F.3d 291. 19 729, Inc. v. Kenton County Fiscal Court (6th Cir. 2008), 515 F.3d 485. 20 Pursuant to R.C. 2907.40(C)(1). 21 Pursuant to R.C. 2907.40(C)(2). 25 Code may remain open until the hour specified in that permit if it does not conduct, offer, or allow sexually oriented business activity in which the performers appear nude.22 (XIV) SEVERABILITY CLAUSE If any section, sub-section, paragraph or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, sub-sections, paragraphs, and clauses shall not be affected. 22 Pursuant to R.C. 2907.40(B). 26 APPENDIX I In addition to the licensing regulations detailed in “MODEL ORDINANCE REGULATING SEXUALLY ORIENTED BUSINESSES,” each Township should consider the following aspects that may be incorporated based on their individual circumstances:23 1. Minimum lighting levels 2. Exterior display / exterior lighting / monitoring requirements 3. Loitering 4. Signage 5. Requirements regarding employee dressing rooms and public and employee restrooms 6. Additional regulations regarding the exhibition of sexually explicit films, videos or live entertainment booths 7. Zoning Restrictions including: a. Sexually oriented business districts b. Distance from certain establishments such as churches, schools, parks, etc. c. Proximity to residential areas d. Set back e. Only one adult oriented business per building f. Parking lot requirements 8. The Township should also consider regulations outlining the inspection of the adult entertainment business. 23 The Attorney General offers NO opinion on the adoption of zoning regulations in these items. These items are suggestions only and NO representation regarding the constitutionality of said suggestions is made or should be implied. VILLAGE OF OSWEGO ZONING ORDINANCE 3-4 3.02DEFINITIONS The following definitions shall be used in the construction and interpretation of this Ordinance: ACCESSORY USE:A structure or use which: 1) is subordinate to and serves a principal structure or principal use; 2) is subordinate in area, extent or purpose to the principal structure or principal use served; 3) contributes to the comfort, convenience or necessity of the occupants of, or the business or industry located in the principal structure or principal use served; 4) is located on the same lot as theprincipal structure or use served. ACTIVE TO INTENSE BURNING:A rate of combustion described by material that burns with a high degree of activity and is consumed rapidly. Examples include sawdust, powdered magnesium, pyroxylin, and other solids deemed by the Fire Department to have equivalent burning characteristics. ADULT USES: This includes: 1.ADULT BOOKSTORE:An establishment having, as a substantial or significant portion of its stock in trade, books, magazines or other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this section (see below), or an establishment with a segment or section devoted to the sale or display of such material. 2.ADULT ENTERTAINMENT ESTABLISHMENT:An enclosed building used for presenting material and/or conduct distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, as defined in this section, or observation by patrols therein. This includes bars, restaurants, movie theaters, theaters, peep shows, strip halls, special cabarets (NAICS 71399, 72241),physical culture establishments, photographic studios, or any other normally permitted use where “specified sexual activities” are displayed, or where “specified anatomical areas” are exposed to customers. a.For the purpose of this definition, the term “specified sexual activities” is defined as: i.Human genitals in a state of sexual stimulation or arousal; ii.Acts of human masturbation, sexual intercourse, or sodomy; iii.Fondling or other erotic touching of human genitals, pubic region, buttock or female breast. b.For the purpose of this definition, the term “specified anatomical areas” is defined as: i.Less than completely and opaquely covered: a)Human genitals, pubic region; VILLAGE OF OSWEGO ZONING ORDINANCE 3-5 b)Buttocks or anal cleavage; and c)Female breast below a point immediately above the top of the areola. ii.Human male genitalsin a discernible turgid state, even if completely and opaquely covered. AGRICULTURE:The use of a tract of land of not less than five (5) acres for growing crops in the open, dairying, pasture, horticulture, floriculture, and necessary accessory uses, including the structures necessary for carrying out farming operations and the residence of the person who owns or operates this farm, and the family thereof; provided, however, such agricultural use shall not include the following uses: 1.The maintenance and operation ofcommercial greenhouses or hydroponic farms, except in zoning districts in which such uses are expressly permitted. 2.Wholesale or retail sales as an accessory use unless the same are specifically permitted by this Ordinance. 3.The feeding, grazing, or sheltering of animals or poultry in either penned enclosures or in open pasture within one hundred (100) feet of any lot line. Agriculture does not include the feeding of garbage to animals, the raising of poultry or fur bearing animals as a principal use, or the operation or maintenance of a commercial stockyard or feed yard. ALLEY:A dedicated public right-of-way, other than a street, that affords a secondary means of access to abutting property. APPAREL STORES:Stores selling new clothing for men, women or children at retail. APPLIANCE SALES:The sale of common household appliances such as washing machines, televisions, power tools, electric razors, radios and refrigerators, and repair of the same types of appliances as are sold on the premises when such repairs are incidental or accessory to the sale of such types of appliances. ARBOR:An open freestanding structure that serves as an entranceway to a yard or garden, on which climbing plants are typically trained to grow. AUTOMOBILE ACCESSORY STORES:Stores engaged primarily in the business of selling automobile related products such as tires, batteries, seat covers and other automobile such accessories. AUTOMOBILE LAUNDRY:Astructure, or portion thereof containing facilities for washing more than two (2) automobiles, using production line methods with a chain conveyor, blower, steam cleaning device or other mechanical device. AUTOMOBILE SALES:The sale of new and used automobiles and other motor vehicles in operating condition; the storage of automobiles and other motor vehicles in operating condition; but not including storage of trucks or more than five (5) tons in weight or buses; and, the repair appurtenances) shall be shown. A similar sketch showing the location of any appurtenances to remain shall be submitted at the same time. The new unit is not to be installed until such time as appropriate inspection and any necessary structure reviews are completed and written approval to proceed is issued. No mobile home may be moved or replaced unless there is an open space of at least ten (10) feet adjacent to the sides and at least five (5) feet adjacent to the ends in all cases. All appurtenances and attachments, except metal canopies and awnings shall be considered as part of the mobile home for the purposes of computing open space distances. 5.Building Permit Required a.No work shall be done to, within, or with respect to any mobile home or mobile home development until a building permit has been issued by the Village. Permits for such work relating to a specific mobile home unit shall be issued only upon the joint application of the lessee or occupant of the unit and the mobile home development owner. b.The applicant or applicants for a building permit shall submit such information as shall be required by the Village. c.A permit fee shall be required in accordance with current adopted fee schedules at the time of issuance. 19.10.060Non-Residential Use Regulations The uses and standards listed below relate to the Village of Wheeling Use Table found in Appendix A. Unless otherwise noted, the use standards of this section apply whether the uses are allowed as Permitted Uses, Special Uses or Accessory Uses. A.Adult Entertainment Establishments 1.Purpose and intent The purpose of this Section is to control through zoning regulations certain adult entertainment establishments that have a direct and detrimental effect on the character of the Village’s residential neighborhoods and commercial areas. This section shall not impose a limitation on the content of any communication materials, including sexually oriented materials as protected by the First Amendment. 2.Applicability The provisions of this Section of the Zoning Code shall apply to all existing and future adult entertainment establishments. However, any such existing establishment that does not meet the zoning district restrictions or the distance limitations, may continue its existence as a nonconforming use; provided, however, that no such business may be enlarged or increased in size or be discontinued for a period exceeding 180 days. 3.General Requirements a.Zoning District Adult entertainment establishments may be operated or maintained only within the I-3 District; provided, that they are located on a minor or major arterial road and subject to the distance limitations noted below. b.Distance Limitations Distance limitations set forth herein shall be measured in a straight line from the lot lines of said premises and the lot line of properties located in specified districts. No adult entertainment establishment shall: ** See Definitions (Chapter 19-01) for terms in italics** Title 19, Zoning Code Last updated May 16, 2011 (Ord. 4608) Village of Wheeling, Illinois 98 SEC. 19.10.060 i.Be operated or maintained within 1,000 feet of the boundary of any residential, institutional or mixed-use district; ii.Be operated or maintained within 1,000 feet of a church, park, recreational site, licensed daycare facility, public library, public or private educational facility which serves persons under age eighteen (18), place of worship, or elderly housing facility; iii.Be operated or maintained within 2,500 feet of any other adult entertainment establishment. c.Same Use Restrictions No adult entertainment establishment shall be located in the same building or upon the same property as another such use. d.Sign Limitations Notwithstanding any other provision of this code, an adult entertainment establishment shall not be permitted more than one sign advertising its business, and it shall be limited to an on-premises or building sign only. All such signs shall meet the following criteria: i.Signs may not illustrate merchandise. ii.No sign shall contain any flashing lights, moving elements, or mechanically changing messages; iii.No sign shall contain any depiction of the human form or any part thereof nor shall it contain sexually explicit language such as "nude dancing" or "Girls, Girls, Girls," etc; iv.In order to allow currently operating adult entertainment establishment to recover its financial investment in current signage, any currently operating adult entertainment establishment shall bring its signage into conformity with the provisions of this Section within one year from the date of passage of this ordinance. v.A one square foot sign shall be placed on the door to state admittance to adults only. e.Building's Exterior Appearance The building's exterior shall meet the following criteria: i.Colors to be earth or neutral tones with primary accent colors to be within the same color family ii.Stripes and geometric patterns are prohibited iii.The exterior shall be adequately maintained in good condition B.Gas Stations and/or Convenience Stores Gas Stations and/or convenience stores shall meet the following requirements: 1.Direct Access to Arterial Streets Required All gas stations and/or convenience stores shall have direct access to an arterial street except when part of a nonresidential development where nonresidential uses will be on both sides of the street. 2.Architectural Design All gas stations and/or convenience stores abutting residential uses and zoning districts shall have pitched roofs matching the roof lines of adjoining residential structures. 3.Canopies The canopies provided over pump islands shall meet the yard requirements of a principal structure. In addition: a.The canopy shall not block visibility at intersections of rights-of-way or drives. b.All pump islands, their surrounding structures, and the canopy overhang shall meet the zoning district's front yard requirement. c.Under no circumstances shall the underside of the canopy as measured at the bottom of its exterior fascia be higher than sixteen (16) feet. ** See Definitions (Chapter 19-01) for terms in italics** Title 19, Zoning Code Last updated May 16, 2011 (Ord. 4608) Village of Wheeling, Illinois 99 SEC. 19.10.060 APPENDIX B-ZONING 3 Accessory or Incidental building or use: A building or use which is: a. Located or conducted on the same zoning lot as the principal building or use served, except as may be specifically provided elsewhere in this Ordinance; b. Clearly incidental to, subordinate in purpose to, and serves the principal use; and c. Either in the same ownership as the principal use or is clearly operated and maintained solely for the comfort, convenience, necessity, or benefit of the occupants, employees, customers, or visitors of or to the principal use. Adult Business: Any establishment having as a substantial or significant portion of its stock in trade or business activity in a use such as, but not limited to the following: Adults-only Bookstores, Adults-only Motion Picture Theaters, Adult Entertainment Centers, Massage Parlors, Rap Parlors, Adults-only Nightclubs or Adults-only Saunas, where explicit sexual conduct is depicted and/or sexual activity is explicitly or implicitly encouraged or tolerated. Adult Entertainment Business: Synonymous with "Adult Business," as defined herein. Adult Entertainment Center: An enclosed building or part of an enclosed building, which contains one or more coin- operated mechanisms which when activated permit a customer to view a live person nude or in such attire, costume or clothing as to expose to view the human male or female genitalia; pubic hair; buttocks; perineum; anal or pubic regions; or, female breast, at or below the areola thereof. In addition, the viewing of a live person, in the above described manner, after paying of any admission or fee for the viewing of same activity. Adults-only: Any items or activities emphasizing, depicting, describing or relating to nudity, explicit sexual conduct (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity. Adults-only Bookstore: An adults-only establishment having as a substantial or significant portion of its stock in trade, books, magazines, films for sale or viewing on premises by use of motion picture devices or other coin-operated means, and other periodicals which are distinguished or characterized by their principal emphasis on matters depicting, describing or relating to nudity, explicit sexual conduct (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity. An establishment, having adults-only items as a substantial or significant portion of its stock, that sells or displays adults-only items for sale to patrons therein. Adults-only Motion Picture Theater: An enclosed building used regularly and routinely for presenting adults-only material distinguished or characterized by an emphasis on matter depicting, describing or relating to nudity, explicit sexual conduct (whether auto-erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity, for observation by patrons therein. Adults-only Nightclub: An establishment or place either occasionally or primarily in the business of featuring topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers, where explicit sexual conduct is depicted and/or sexual activity is explicitly or implicitly encouraged or tolerated. Adults-only Sauna: An establishment or place primarily in the business of providing a steam bath and/or massage services, where explicit sexual conduct is depicted and/or sexual activity is explicitly or implicitly encouraged or tolerated. Advertising Device: Any advertising sign, billboard, statuary or poster panel which directs attention to a business, commodity, service or entertainment not exclusively related to the premises where such sign is located or to which it is affixed; but does not include those advertising signs, billboards, or poster panels which direct attention to the business on the premises or to a brand name of a product or commodity with which the business is specifically identified and which is sold on the premises. Agricultural Activities: Means and includes planting, raising or harvesting of any agricultural or horticultural commodities, including the related handling, packing and processing upon the farm where produced or at the point of first processing. Weather Forecast Search HOMENEWSSPORTSCLASSIFIEDSOBITUARIESLIFESTYLESSPECIAL SECTIONS contact ussubscribearchivesphoto galleryforms Derby Planners Approve Adult Store Zoning Regs June 26, 2012 BYLAURA CARPENTER DERBY – The Derby Planning Commission has approved regulations on adult-oriented businesses for the town; however the decision was not unanimous. Planner Dave LaBelle voted the motion down while all others said yes. The new regulations require that any adult-oriented business locate in specific areas and not be near other entities such as schools and churches and not in residential areas. A public hearing was held June 18 on the zoning bylaw amendment. Although the majority of the planning commission approved the regulations, the Derby Select Board must also approve it before the zoning regulations are amended. A public hearing before the select board will be warned and then the board will vote. The planning commission approved allowing adult-oriented businesses only in industrial and commercial and/or industrial zones, which is a limited area in the town. One part of the Quarry Road is industrial. Some property around Citizens Road and the Interstate access road is zoned commercial/industrial. However, not all areas in the zones would work because of the proposed setback requirements. Adult businesses are listed as: adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, or adult motion picture theater. The proposal also defines each entity. “The Intent is to establish reasonable and uniform regulations for adult oriented businesses, which, unless closely regulated, cause adverse secondary impacts on the community,” the meeting minutes state. These potential impacts, according to the planners, are increased crime, blighting of neighborhoods, decreased property values, depressed real estate markets, harm to minors, and spread of disease and an overall decline in the quality and character of surrounding neighborhoods. Also explained is that these “provisions” do not deny access by adults to adult entertainment materials protected by the First Amendment nor deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Other regulations include setback requirements, which would be a minimum of 500 feet from the boundary of any residential zoning district, any public library, public, private, or parochial school, preschool, and daycare center, public park, playground, or any place of religious organization. An adult-oriented business would have to be located a minimum of 1,000 feet from any other adult-oriented business already in existence. The businesses would also have to prevent a view inside from the outside of specified objects or activities. Signs would also be regulated. The proposed bylaw amendment comes in the wake of controversy on an adult store that opened in Derby. A group of people tried to stop the store from opening to no avail as there are currently no regulations in the Derby Town Zoning Bylaws regarding adult businesses. Joe Profera, the chair of the planning commission, said in an interview Monday that he wanted something in place to regulate adult-oriented business. You might like: [?] Login or register to post comments Printer-friendly versionSend to friend NEWPORT’S SUPER HEROES ■ FOUR ON THE FLOOR ■ SPECIAL ELECTION FOR DERBY CLERK ■ North Country Teen in Fatal Crash ■ WAVES OF CHANGE ■ Skip to main content WAVES OF CHANGE BOOM OR CRUNCH? 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