CR 92-104 Adult Oriented Business
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April 28, 1992
Council Rpt 92-104
ADULT ORIENTED BUSINESS ORDINANCE
Proposed Action
staff recommends that the Council approve the following motion: Move
that the Hopkins City Council approve Ordinance #92-709 for first
readinq.
This action will establish section 1165 in the Hopkins City Code which
will license and regulate adult oriented businesses.
overview
The City of Hopkins currently has no ordinance to regulate adult
oriented businesses except for the zoning ordinance. Based upon the
experiences of other cities that have such establishments, the City
should have an ordinance that allows the City to regulate these
businessess.
The proposed ordinance does the following:
1) defines adult oriented businesses;
2) limits possible locations;
3) establishes hours of operation;
4) establishes methods of operation;
5) establishes licensing procedures;
6) gives various City departments the right to inspect these
businesses; and
7) defines causes for denial or revocation of licenses.
This ordinance has been reviewed by the City attorney and the affected
City departments.
SU~Dorting Information
o Ordinance #92-709
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HENNEPIN COUNTY, MINNESOTA
ORDINANCE NO. 91-709
AN ORDINANCE AMENDING THE HOPKINS CITY CODE
BY ADDING SECTION 1165
LICENSING ADULT ORIENTED BUSINESSES
BE IT ORDAINED by the Council of the City of Hopkins as follows:
SECTION 1. That Chapter XI be amended by adding Section 1165 to read
as follows:
1165.01. Purpose and Intent. Subdivision 1. Findings. It is the purpose of this
ordinance to regulate Adult Oriented Businesses to promote the health, safety,
morals, and general welfare of the citizens of the City and to establish reasonable
and uniform regulations to:
a. Prevent additional criminal activity within the City;
b. Prevent deterioration of neighborhoods and its consequent adverse effect
on real estate values of properties within the neighborhood;
c. To locate Adult Oriented Businesses away from residential areas, schools,
churches, and parks and playgrounds;
d. Prevent concentration of Adult Oriented Businesses within certain areas
of the City.
Subd. 2. 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 Adult oriented materials. Similarly, it is not the intent nor
effect of this ordinance to restrict or deny access by adults to Adult oriented
materials protected by the First Amendment, or to deny access by distributors and
exhibitors of Adult oriented entertainment to their intended market.
1165.03. Definitions. Subdivision 1. For purposes of this section the terms
defined in this section have the meanings given them.
Subd. 2. Adult Use. Any of the activities and businesses described below
constitute "Adult Oriented Businesses" which are subject to the regulations of this
ordinance.
Subd. 3. Adult Book and/or Media Store. An establishment which excludes
minors or which has a substantial portion of its stock in trade or stock on display
books, magazines, films, videotape, or other media which are characterized by their
emphasis on matter depicting, describing, or relating to "specified sexual
activities" or "specified anatomical areas".
Subd. 4. Adult Cabaret. An establishment which provides dancing or other
live entertainment, if such establishment excludes minors by virtue of age or if such
dancing or other live entertainment is distinguished or characterized by an emphasis
on the performance, depiction or description of "specified sexual activities" or
"specified anatomical areas".
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Subd. 5. Adult Establishment. Any business which excludes minors or offers
its patrons services, entertainment, or the sale of merchandise characterized by an
emphasis on matter depicting, exposing, describing, discussing, or relating to
specified sexual activities or specified anatomical areas. Specifically included in
the term, but without limitation, are adult book and media stores, adult cabarets,
adult hotels or motels, adult mini-motion picture theaters, adult modeling studios,
adult motion picture arcades, adult motion picture theaters, adult novelty
businesses, and other adult establishments.
Subd. 6. Adult Hotel or Motel. Adult hotel or motel means a hotel or motel
from which minors are specifically excluded from patronage and wherein material is
presented which is distinguished or characterized by an emphasis on matter depicting,
describing, or relating to specified sexual activities or specified anatomical areas.
Subd. 7.
Adult Mini-Motion Picture Theater.
a) A theater in an enclosed building, from which minors are excluded,
with a capacity for less than 50 persons used for presenting motion pictures,
including but not limited to film and videotape, having as a dominant theme
material distinguished or characterized by an emphasis on matter depicting,
describing, or relating to "specified sexual activities" or "specified
anatomical areas".
b) Any business which presents motion pictures, from which minors are
excluded, including films and videotapes, having as a dominant theme material
distinguished or characterized by an emphasis on matter depicting, describing,
or relating to "specified sexual activities" or "specified anatomical areas",
for viewing on the premises, including but not limited to private booths,
viewing by means of coin operated or other mechanical devices, and the viewing
of excerpts of motion pictures offered for sale or rent.
Subd. 8. Adult Modeling Studio. An establishment, which excludes minors,
whose maj or business is the provision, to customers, of figure models who are so
provided with the intent of providing sexual stimulation or sexual gratification to
such customers and who engage in specified sexual activities or display specified
anatomical areas while being observed, painted, painted upon, sketched, drawn,
sculptured, photographed, or otherwise depicted by such customers.
Subd. 9. Adult Motion Picture Arcade. Any place which excludes minors
wherein coin or token operated or electronically, electrically, or mechanically
controlled or operated still or motor picture machines, projectors, or other image-
producing devices are maintained to show images to five or fewer persons per machine
at anyone time, and where the images so displayed are distinguished or characterized
by an emphasis on depicting or describing specified sexual activities or specified
anatomical areas.
Subd. 10. Adult Motion Picture Theater. A theater in an enclosed building,
from which minors are excluded, with a capacity of 50 or more persons used regularly
and routinely for presenting live entertainment or motion pictures, including but not
limited to film and videotape, having as a dominant theme material distinguished or
characterized by an emphasis on matter depicting, describing, or relating to
"specified sexual activities" or "specified anatomical areas" for observation by
patrons therein.
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Subd. 11. Adult Novelty Business. A business, from which minors are
excluded, which sells, offers to sell, or displays devices which simulate human
genitals or devices which are designed for sexual stimulation.
Subd. 12.
Specified Anatomical Areas are any of the following conditions:
a)
Less than completely and opaquely covered:
1)
human genitals, pubic region, or pubic hair;
2)
buttock; and
3) female breast below a point immediately above the top of the
areola; and
b)
covered.
Human male genitals in a discernibly turgid state, even if opaquely
Subd. 13.
Specified Sexual Activities are any of the following conditions:
a)
simulated,
intercourse,
animal.
An act of sexual intercourse,
including genital-genital,
whether between human beings
normal or perverted, actual or
anal-genital, or oral-genital
or between a human being and an
b) Sadomasochistic abuse, meaning flagellation or torture by or upon a
person who is nude or clad in undergarments or in a revealing costume or the
condition of being fettered, bound, or otherwise physically restricted on the
part of one so clothed.
c) Masturbation or lewd exhibitions of the genitals including any
explicit, close-up representation of a human genital organ.
d) Physical contact or simulated physical contact with the clothed or
unclothed pubic areas or buttocks of a human male or female, or the breasts of
a female, whether alone or between members of the same or opposite sex or
between humans and animals in an act of apparent sexual stimulation or
gratification.
1165.05. Application of this Ordinance. Except as in this ordinance specifically
provided, no structure shall be erected, converted, enlarged, reconstructed, or
altered, and no structure or land shall be used, for any purpose nor in any manner
which is not in conformity with this ordinance.
No Adult Oriented Business shall engage in any activity or conduct or permit any
other person to engage in any activity or conduct in or about the establishment which
is prohibited by any ordinance of the City of Hopkins, the laws of the State of
Minnesota, or the United States of America. Nothing in this ordinance shall be
construed as authorizing or permitting conduct which is prohibited or regulated by
other statutes or ordinances, including but not limited to statutes or ordinance
prohibiting the exhibition, sale, or distribution of obscene material generally, or
the exhibition, sale, or distribution of specified materials to minors.
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1165.09. Location. During the term of this ordinance, no Adult: Oriented
Businesses shall be located less than 300 feet from any residential zoning district
boundary or site used for residential purposes, and less than 1,000 feet from any -
church site, from any school site, or from any park which is adjacent to property
zoned residential. In addition, no Adult Oriented Business may be located within
1,000 feet of another Adult Oriented Business. For purposes of this ordinance, this
distance shall be a horizontal measurement from the nearest existing residential
district boundary or site used for residential purposes, church site, school site,
park site, or another Adult Oriented Business site to the nearest boundary of the
proposed Adult Oriented Business site.
1165.11. Hours of Operation. No Adult Oriented Business site shall be open to the
public from the hours of 10:00 o'clock p.m. to 8:00 o'clock a.m.
1165.13. Operation. Subdivision 1. Off-site Viewing. An establishment operating
as a Adult Oriented Business shall prevent off-site viewing of its merchandise, which
if viewed by a minor, would be in violation of M.S. Chapter 617 or other applicable
Federal or State Statutes or local ordinances.
Subd. 2. Entrances. All entrances to the business, with the exception of
emergency fire exits which are not useable by patrons to enter the business, shall be
visible from a public right-of-way.
Subd. 3 Layout. The layout of the display areas shall be designed so that
the management of the establishment and any law enforcement personnel inside the
store can observe all patrons while they have access to any merchandise offered for
sale or viewing including but not limited to books, magazines, photographs, video
tapes, or any other material.
Subd. 4 Illumination. Illumination of the premises exterior shall be
adequate to observe the location and activities of all persons on the exterior
premises.
Subd. 5 Signs. Signs for Adult Oriented Businesses shall comply with the
City's sign ordinance, and in addition signs for Adult Oriented Businesses shall not
contain representational depictions of an adult nature or graphic descriptions of the
adult theme of the operation.
1165.15. Licenses. Subd. 1 License Required. All establishments, including any
business operating at the time this ordinance becomes effective, operating or
intending to operate Adult Oriented Business, shall apply for and obtain a license
with the City of Hopkins. A person is in violation of the City Code if he operates a
Adult Oriented Business without a valid license, issued by the City.
Subd 2. Applications. An application for a license must be made on a form
provided by the City. Four (4) complete copies of the application shall be
furnished to the office of the City Clerk.
a) The application must be accompanied by a sketch or diagram showing the
configuration of the premises, including a statement of total floor space
occupied by the business. The sketch or diagram need not be
professionally prepared but must be drawn to a designated scale or drawn
with marked dimensions of the interior of the premises to an accuracy of
plus or minus six inches.
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b) The applicant must be qualified according to the provisions of this
chapter and the premises must be inspected and found to be in compliance
with the law by the health official, fire department, and building
official.
c) Application for license shall contain the address and legal description
of the property to be used; the names, addresses, phone numbers of the
owner, lessee, if any, and the operator or manager; the name, address,
and phone number of two persons, who shall be residents of the State of
Minnesota, and who may be called upon to attest to the applicant's,
manager's, or operator's character; whether the applicant, manager, or
operator has ever been convicted or a crime or offense other than a
traffic offense and, if so, complete and accurate information as to the
time, place, and nature of such crime or offense including the
disposition thereof; the names and addresses of all creditors of the
applicant, owner, lessee, or manager insofar as and regarding credit
which has been extended for the purposes of constructing, equipping,
maintaining, operating, or furnishing or acquiring the premises, personal
effects, equipment, or anything incident to the establishment,
maintenance and operation of the business.
d) If the application is made on behalf of a corporation, joint business
venture, partnership, or any legally constituted business association, it
shall submit along with its application, accurate and complete business
records showing the names and addresses of all individuals having an
interest in the business, including partners, officers, owners, and
creditors furnishing credit for the establishment, acquisition,
maintenance, and furnishings of said business and, in the case of a
corporation, the names and addresses of all officers, general managers,
members of the board of directors as well as any creditors who have
extended credit for the acquisition, maintenance, operation, or
furnishing of the establishment including the purchase or acquisition of
any items of personal property for use in said operation.
e) All applicants shall furnish to the City, along with their applications,
complete and accurate documentation establishing the interest of the
applicant and any other person having an interest in the premises upon
which the building is proposed to be located or the furnishings thereof,
personal property thereof, or the operation or maintenance thereof.
Documentation shall be in the form of a lease, deed, contract for deed,
mortgage deed, mortgage credit arrangement, loan agreements, security
agreements, and any other documents establishing the interest of the
applicant or any other person in the operation, acquisition, or
maintenance of the enterprise.
Subd. 3. Issuance of License. The City Manager shall recommend approval of
the issuance of a license by the City to an applicant within 45 days after receipt of
an application unless he finds one or more of the following to be true:
a) An applicant is under 18 years of age.
b) An applicant or an applicant's spouse is overdue in his payment to the
City, County, or State of taxes, fees, fines, or penalties assessed
against him or imposed upon him in relation to a Adult Oriented Business.
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.
c) An applicant has failed to provide information reasonably necessary for
issuance of the license or has falsely answered a question or request for
information on the application form.
d) An applicant or an applicant's spouse has been convicted of a violation
of a provision of this chapter, other than the offense of operating a
Adult Oriented Business without a license, within two years immediately
preceding the application. The fact that a conviction is being appealed
shall have no effect.
e) An applicant is residing with a person who has been denied a license by
the City to operate a Adult Oriented Business within the preceding 12
months, or residing with a person whose license to operate a Adult
Oriented Business has been revoked within the preceding 12 months.
f) The premises to be used for the Adult Oriented Business have not been
approved by the health official, fire department, and the building
official as being in compliance with applicable laws and ordinances; such
inspections shall be completed within thirty (30) days from the date the
application was submitted, provided that the application contains all of
the information required by this ordinance. If the application is
deficient, the inspections shall be completed within thirty (30) days
from the date the deficiency has been corrected.
g) The license fee required by this chapter has not been paid.
h) An applicant has been employed in a Adult Oriented Business in a
managerial capacity within the preceding 12 months and has demonstrated
that he is unable to operate or manage a Adult Oriented Business premises
in a peaceful and law-abiding manner, thus necessitating action by law
enforcement officers.
i) An applicant or an applicant's spouse has been convicted of a crime
involving any of the following offenses:
1) Any sex crimes as defined by Minnesota statutes 609.29 through
609.352 inclusive or as defined by any ordinance or statute in
conformity therewith;
2) Any obscenity crime is defined by Minnesota statutes 617.23 through
617.299 inclusive, or as defined by any ordinance or statute in
conformity therewith; for which:
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;
less than five years have elapsed since the date of the last
conviction or the date of release from confinement for the
conviction, whichever is the later date, if the conviction is a
felony offense; or
".
less than five years have elapsed since the date of the last
conviction or the date of release from confinement for the last
conviction, whichever is the later date, if the conviction are of
two or more misdemeanor offenses or combination of misdemeanor
offenses occurring within any 24 month period.
3) The fact that a conviction is being appealed shall have no effect
on the disqualification of the applicant or applicant's spouse.
Subd. 4. Requalification. An applicant who has been convicted or whose
spouse has been convicted of an offense listed in Section 1165.15, Subd. 3i may
qualify for a Adult Oriented Business license only when the time period required by
Section 1165.15, Subd. 3i has elapsed.
Subd. 5. Posting. The license, if granted, shall state on its face the name
of the person or persons to whom it is granted, the expiration date, and the address
of the Adult Oriented Business. The license shall be posted in a conspicuous place
at or near the entrance to the Adult Oriented Business so that it may be easily read
at any time.
Subd. 6. Council Action. The City Council shall act to approve or
disapprove the license application within 120 days from the date the application was
submitted, provided that the application contains all of the information required by
this ordinance. If the application is deficient, the Council shall act on the
application within 120 days from the date that the deficiency has been corrected.
Subd. 7. Appeals. Within 90 days after the decision by the Council, the
applicant may appeal to the District Court by serving a notice upon the Mayor or
Clerk of the Municipality.
1165.17
Fees. Fees shall be set by City Council Resolution.
1165.19 Inspection. Subdivision 1. Access. An applicant or license shall
permit health officials, representatives of the police department, fire department,
and building inspection division, to inspect the premises of a Adult Oriented
Business for the purpose of ensuring compliance with the law, at any time it is
occupied or open for business.
Subd. 2. Refusal to Permit Inspections. A person who operates a Adult
Oriented Business or his agent or employee commits an offense if he refuses to permit
a lawful inspection of the premises by a representative of the police department at
any time it is occupied or open for business.
Subd. 3. Exceptions. The provisions of this section do not apply to areas
of an adult motel which are currently being rented by a customer for use as a
permanent or temporary habitation.
1165.21 Expiration and Renewal. Subdivision 1. Expiration. Each license shall
expire at the end of the calendar year and may be renewed only by making application
as provided in Section 1165.15., Subd. 1. Application for renewal should be made at
least 60 days before the expiration date, and when made less than 60 days before the
expiration date, the expiration of the license will not be affected.
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Subd. 2. Denial of Renewal. When the City denies renewal of a license, the
applicant shall not be issued a license for one year from the date of denial. If,
subsequent to denial, the City finds that the basis for denial of the renewal license
has been corrected or abated, the applicant may be granted a license if at least 90
days have elapsed since the date denial became final.
1165.23. Suspension. Subdivision 1. Causes of Suspension. The City may suspend
a license for a period not to exceed 30 days if it determines that a licensee or an
employee of a license has:
a) Violated or is not in compliance with any provisions of this chapter.
b) Engaged in excessive use of alcoholic beverages while on the Adult
Oriented Business premises.
c) Refused to allow an inspection of the Adult Oriented Business premises as
authorized by this chapter.
d) Knowingly permitted gambling by any person on the Adult Oriented Business
premises.
e) Demonstrated inability to operate or manage a Adult Oriented Business in
a peaceful and law-abiding manner, thus necessitating action by law
enforcement officers.
Subd. 2. Notice. A suspens ion by the City shall be proceeded by written
notice to the licensee and a public hearing. The notice shall give at least 10 days
notice of the time and place of the hearing and shall state the nature of the charges
against the licensee. The notice may be served upon the licensee personally, or by
leaving the same at the licensed business premises with the person in charge thereof.
1165.25 Revocation. Subdivision 1. Suspended Licenses. The City may revoke a
license if a cause of suspension in section 1165.23 occurs and the license has been
suspended within the preceding 12 months.
Subd. 2. Causes of Revocation. The City shall revoke a license if it
determines that:
a) A licensee gave false or misleading information in the material submitted
to the City during the application process;
b) A licensee or an employee has knowingly allowed possession, use, or sale
of controlled substances on the premises;
c) A licensee or an employee has knowingly allowed prostitution on the
premises;
d) A licensee or an employee knowingly operated the Adult Oriented Business
during a period of time when the licensee's license was suspended;
e) A licensee has been convicted of an offense listed in Section 1165.15,
Subd. 3i for which the time period required in Section 1165.15, Subd. 3i.
has not elapsed;
"
f) On two or more occasions within a 12 month period, a person or persons
committed an offense occurring in or on the licensed premises of a crime
listed in Section 1165.15, Subd. 3i for which a conviction has been
obtained, and the person or persons were employees of the Adult Oriented
Business at the time the offenses were committed.
g) A licensee or an employee has knowingly allowed any act of sexual
intercourse, sodomy, oral copulation or masturbation to occur in or on
the licensed premises.
Subd. 3. Appeals. The fact that a conviction is being appealed shall
have no effect on the revocation of the license.
Subd. 4. Exceptions. 1165.25, Subd. 2g does not apply to adult motels
as a ground for revoking the license unless the licensee or employee knowingly
allowed the act of sexual intercourse, sodomy, oral copulation, masturbation,
or sexual contact to occur in a public place or within public view.
Subd. 5. Granting a License after Revocation. When the City revokes a
license, the revocation shall continue for one year and the licensee shall not
be issued a Adult Oriented Business license for one year from the date
revocation became effective. If, subsequent to revocation, the City finds that
the basis for the revocation has been corrected or abated, the applicant may be
granted a license if at least 90 days have elapsed since the date the
revocation became effective. If the license was revoked under Section 1165.25,
Subd. 2e an applicant may not be granted another license until the appropriate
number of years required under Section 1165.15, Subd. 3i has elapsed.
Subd. 6. Notice. A revocation by the City shall be proceeded by
written notice to the licensee and a public hearing. The notice shall give at
least 10 days notice of the time and place of the hearing and shall state the
nature of the charges against the licensee. The notice may be served upon the
licensee personally, or by leaving the same at the licensed premises with the
person in charge thereof.
1165.27 Transfer of License. A licensee shall not transfer this license to
another, nor shall a licensee operate a Adult Oriented Business under the authority
of a license at any place other than the address designated in the application.
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1165.29. Severability. Every section, prov1s1on, or part of this ordinance or any
permit issued to this ordinance is declared severable from every other section,
provision, or part thereof to the extent that if any section, provision, or part of
this ordinance or any permit issued pursuant to this ordinance shall be held invalid
by a court of competent jurisdiction it shall not invalidate any other section,
provision, or part thereof.
First Reading:
May 5, 1992
Second Reading:
Date of Publication:
Date Ordinance Takes Effect:
Mayor
Attest:
City Clerk