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ORD 08-006ORDINANCE 08 -06 CITY OF ELK RIVER AN ORDINANCE OF THE CITY OF ELK RIVER REPEALING ALL OF CHAPTER 38, ARTICLE IX, "SEXUALLY ORIENTED LAND USES," AND ADOPTING NEW CHAPTER 38, ARTICLE IX, "SEXUALLY ORIENTED BUSINESSES," OF THE CITY CODE OF ORDINANCES THE CITY COUNCIL OF THE CITY OF ELK RIVER DOES HEREBY ORDAIN AS FOLLOWS: SECTION I. CHAPTER 38, ARTICLE IX OF THE ELK RIVER MUNICIPAL CODE IS HEREBY REPEALED. SECTION 2. NEW CHAPTER 38, ARTICLE IX OF THE ELK RIVER MUNICIPAL CODE IS HEREBY ADOPTED, AS FOLLOWS: CHAPTER 38, ARTICLE IX. SEXUALLY ORIENTED BUSINESSES DIVISION I. GENERALLY Sec. 38 -441. Definitions. The following words and terms have the following meanings when used in this section. 0 Sexually - oriented business means: a business that meets any of the following criteria, measured on a daily, weekly, monthly, or yearly basis: has more than 25% of its inventory, stock in trade, or publicly displayed merchandise in sexually - oriented materials; devotes more than 25% of its floor area (not including storerooms, stock areas, bathrooms, basements, or any portion of the business not open to the public) to sexually- oriented materials; or derives more than 25% of its gross revenues from sexually- oriented materials; or A business that engages for any length of time in a sexually- oriented use as defined below or any other use that has an emphasis on specified sexual activities or specified anatomical areas. Sexually - oriented materials means visual, printed, or aural materials, and other objects or devices, that: contain, depict, simulate, or describe specified sexual activities or specified anatomical areas; or are marketed for use in conjunction with, or are primarily used only with or during, specified sexual activities; or • are designed for sexual stimulation S:\0rdinances\2008 \08 -06 Sex.doc N Sexually - oriented use includes, but is not limited to, any of the following activities and businesses, even if the activity exists for only a short -time: Adult bod aintin studio means an establishment or business that provides the service of applying yp � p paint, ink, or other substance, whether transparent or non - transparent, to the body of a patron when the person is nude. Adult bookstore means an establishment or business used for the barter, rental, or sale of items consisting of printed matter, pictures, slides, records, audio tape, videotape, movies, or motion picture film if it meets the criteria of a sexually- oriented business as defined above. Adult cabaret means a business or establishment that provides dancing or other live entertainment distinguished or characterized by an emphasis on: (1) the depiction of nudity, specified sexual activities or specified anatomical areas; or (2) the presentation, display, or depiction of matter that seeks to evoke, arouse, or excite sexual or erotic feelings or desire. Adult companionship establishment means a business or establishment that provides the service of engaging in or listening to conversation, talk, or discussion distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas. Adult conversation / rap parlor means a business or establishment that provides the services of engaging in or listening to conversation, talk, or discussion distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas. Adult health /sport club means a health /sport club that is distinguished or characterized by an emphasis • on specified sexual activities or specified anatomical areas. Adult hotel or motel means a hotel or motel that presents material distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas. Adult massage parlor / health club means a massage parlor or health club that provides massage services distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas. Adult mini - motion picture theater means a business or establishment with a capacity of less than 50 persons that as a prevailing practice presents on- premises viewing of movies, motion pictures, or other material distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas. Adult modeling studio means a business or establishment that provides live models who, with the intent of providing sexual stimulation or sexual gratification, engage in specified sexual activities or display specified anatomical areas while being observed, painted, painted upon, sketched, drawn, sculptured, photographed, or otherwise depicted. Adult motion picture arcade means any place to which the public is permitted or invited where coin or slug- operated or electronically, electrically, or mechanically controlled or operated still or motion picture machines, projectors, or other image- producing devices are used to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by an emphasis on depicting or describing specified sexual activities or specified anatomical areas. S:\Ordinances\2008 \08 -06 Sex.doc Adult motion picture theater means a motion picture theater with a capacity of 50 or more persons that as • a prevailing practice presents material distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas for observation by patrons. Adult novelty business means an establishment or business that has a variety of items for sale if it meets the criteria established as a sexually - oriented use. Adult sauna means a sauna that excludes minors by reason of age, and that provides a steam bath or heat bathing room used for the purpose of bathing, relaxation, or reducing, if the service provided by the sauna is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas. Adult steam room /bathhouse facility means a building or portion of a building used for providing a steam bath or heat bathing room used for the purpose of pleasure, bathing, relaxation, or reducing, if the building or portion of a building restricts minors by reason of age and if the service provided by the steam room /bathhouse facility is distinguished or characterized by an emphasis on specified sexual activities or specified anatomical areas. Specified anatomical areas means: Less than completely and opaquely covered human genitals, public area, buttock, anus, or female breast below a point immediately above the top of the areola; and Human male genitals in a state of sexual arousal, whether or not completely and opaquely covered. S p eci f ed sexual activities means: Actual or simulated: sexual intercourse; oral copulation; anal intercourse; oral -anal copulation; bestiality; direct physical stimulation of unclothed genitals; flagellation or torture in the context of a sexual relationship; the use of excretory functions in the context of a sexual relationship; anilingus; coprophagy; coprophilia; cunnilingus; fellatio; necrophilia; pedophilia; piquerism; or zooerastia; Clearly depicted human genitals in the state of sexual stimulation, arousal, or tumescence; Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; Fondling or touching of nude human genitals, pubic regions, buttocks, or female breasts; Situations involving a person or persons, any of whom are nude, who are clad in undergarments or in sexually revealing costumes and engaged in the flagellation, torture, fettering, binding, or other physical restraint of any person; Erotic or lewd touching, fondling, or other sexually oriented contact with an animal by a human being; or Human excretion, urination, menstruation, or vaginal or anal irrigation. • Sec. 38 -442. Purpose. The purpose of this section is to prescribe licensing requirements for sexually- oriented businesses to protect and enforce public health, safety, and welfare concerns. Public safety concerns, such as S:\Ordinances\2008 \08 -06 Sex.doc 4 criminal complaints relating to prostitution, providing services to minors, and illicit drug use and /or sales have been identified by law enforcement and other reports and studies to be potential public safety concerns associated with sexually oriented businesses. Furthermore, the potential for sexually transmitted diseases that can be generated in confined areas in sexually oriented businesses has been identified in public health reports as a public health concern. Sec. 38 -443. Exemptions. This section does not regulate the following: (a) Material with significant literary content or social commentary; (b) A business where sexually- oriented materials are sold, bartered, distributed, leased, furnished, or otherwise provided for off -site use or entertainment, if the sexually- oriented material on each item is blocked from view by an opaque cover as required by Minn. Stat § 617.293, and each item is in an area accessible only by an employee of the business; (c) A person or organization exempted under Minn. Stat. § 617.295; (d) Activity regulated under Minn. Stat. § 617.251; (e) Displaying works of art showing specified anatomical areas, so long as no sexually- oriented materials are for sale, and the business does not have a liquor license; and (f) Movies rated G, PG, PG13, NC17, or R. • Secs. 38 -444 to 38 -450 Reserved. DIVISION 2. LICENSING Sec. 38 -451. Required No person may own or operate a sexually- oriented business within the City of Elk River unless the person is currently licensed under this section. Sec. 38 -452. Application (a) The application for a sexually- oriented business license under this section must be made on a form supplied by the city and must provide the following information: (1) The name of the applicant and all persons associated in the business. (2) The address and legal description of the premises including a map of the area for which the license is sought, showing dimensions, locations of buildings, street access, and parking facilities. (3) Whether all real estate and personal property taxes, any assessments, or other • financial claims of the city or other governmental agency that are due and payable for the premises to be licensed have been paid, and if not paid, the years and amounts that are unpaid. S:\0rdinances\2008 \08 -06 Sex.doc (4) Whether the applicant has ever used or been known by a name other than his /her true name, and if so, what was the name, or names, and information concerning • dates and places where used. (5) Whether the applicant is married or single. If married, the true name, place and date of birth and street address of applicant's spouse. (6) Street address at which applicant and spouse have lived during the preceding ten years. (7) Kind, name, and location of every business or occupation applicant and spouse have been engaged in during the preceding ten years. (8) Names and addresses of applicant's and spouse's employers and partners, if any, for the preceding ten years. (9) Whether the applicant has been convicted of any violation of a federal, state, or local law, ordinance provision other than a non - alcohol related traffic offense within the last 10 years. If so, the applicant must furnish information as to the time, place, and offense for which convictions were had. (10) Whether the applicant or spouse has ever been engaged as an employee or in operating a sexually- oriented business, massage business, or other business of a similar nature. If so, applicant must furnish information as to the time, place, and length of employment. 11 If the applicant is a partnership, the name and address of all partners and all ( ) pp P p p information concerning each partner as is required of a single applicant as above. A managing partner, or partners, must be designated. The interest of each partner, or partners in the business must be submitted with the application and, if the partnership is required to file a certificate as to trade name under the provisions of Minn. Stat. Chapter 333, a copy of the certificate must be attached to the application. (12) If the applicant is a corporation or other organization, the applicant must submit the following: a. Name, and if incorporated, the state of incorporation; b. Names and addresses of all officers; C. The name of the manager or proprietor or other agent in charge of, or to be in charge of the premises to be licensed, giving all information about said person as is required in the case of a single applicant; and d. A list of all persons who, single or together with their spouse own or control an interest in said corporation or association in excess of five percent or who are officers of said corporation or association, together with their addresses and all information as is required for a single applicant. (13) The amount of the investment that the applicant has in the business, land, building, premises, fixtures, furniture, or stock in trade, and proof of the source of the money. S: \Ordinances\2008 \08 -06 Sex.doc • �J • 6 (14) Whether the applicant holds a current license for a sexually- oriented business or similar business from another governmental unit. (15) Whether the applicant has ever been denied a license for a sexually- oriented business or similar business from another governmental unit. (16) Additional information that the city deems appropriate. (b) No license may be issued until the police department has conducted an investigation of the representations set forth in the application, the applicant's moral character, and the applicant's financial status. (c) The owner or manager must live within 75 miles of the licensed business. The required residency must be established by the time the license is issued and maintained throughout the existence of the license and all renewals. (d) No license, except for a renewed license, may be issued for a sexually- oriented business until the Council has held a public hearing and approved a conditional use permit. Sec. 38 -453. Grounds for Denial or Revocation (a) No license provided for in this division may be granted to or held by the following: (1) A person who is not a citizen of the United States or a resident alien. (2) A person who is a minor at the time the application is filed. (3) A person who has been convicted of a crime directly related to the licensed occupation and has not shown competent evidence of sufficient rehabilitation and present fitness to perform the duties of the owner, operator, or manager of a sexually- oriented business under Minn. Stat. § 364.03, subd. 3, or a person who is not of good moral character and repute. (4) A person who has had a license for a sexually- oriented business or similar business revoked anywhere within five years of the license application. (5) A place or business ineligible for a license under city ordinance or state law. (6) Operation in a zoning district where the business is not allowed pursuant to Chapter 30 of this code. (7) A place or business that is currently licensed as a pawnshop, massage business, or establishment that sells alcoholic beverages. (8) A person who fails to submit a fully completed application form. (9) A person who fails to pay the yearly application fee. (10) No sexually- oriented business shall be operated or located within 1,000 feet of any residence, church, school, daycare center, library, or park, nor within 250 feet of any SAOrdinances\2008 \08 -06 Sex.doc establishment licensed for the sale of intoxicating liquor, nor within 1,000 feet of any sexually- oriented business. The distance limitations shall be measured from property isline to property line at the nearest point. (b) The Council shall have the discretion to consider in granting, denying, revocatiog, or renewing a license any reasonable facts or circumstances relating to public health, safety, and welfare, including, but not limited to the following: (1) Operation on a premises on which taxes, assessments, or other financial claims of the city or other government agency are delinquent and unpaid. (2) False statement or material omission in the license application or investigation. (3) Health hazards attributable to the business. (4) Each licensee has the continuing duty to properly notify the city clerk of a change in the information or facts required to be furnished on the application for a license. This duty continues throughout the period of the license. Failure to notify the city may be grounds for denial or revocation. (c) Where a reasonable basis is found by the council to impose reasonable restrictions on the license, taking into consideration one or more of the facts or circumstances, the council may upon issuance or renewal of a license impose such reasonable conditions and restrictions on the manner and circumstances under which the licensed activity shall be conducted to preserve the public peace and protect and promote good order and security. • Sec. 38 -454. No Transfers (a) All licenses issued under this division shall be valid only on the premises for which the license was issued and only for the person to whom the license was issued. No transfer of any license to another location or person shall be valid. Relocation or sale of the business shall require the approval and issuance of a new license. (b) Transfer of 25 percent or more of the ownership interest of a business entity, or of a controlling interest of it, whichever is less, will be deemed a sale of the business. If the licensee is a business entity that is wholly owned by another entity, the same provisions about the transfer of ownership or a controlling interest will apply to the parent entity and any second parent entity that wholly owns the parent entity. (c) A sale of the business as defined in this section without the approval and issuance of a new license shall result in the unlicensed sale of tobacco, tobacco products, and tobacco related devices. Transfer of this amount of ownership interest without prior Council approval is a ground for revocation or suspension of the license. In addition, each day the licensee operates under the license after a transfer has taken place without obta-ning Council approval will be a separate violation of this ordinance. (d) In the case of the death of a licensee, the personal representative of a licensee may continue ioperation of the business for not more than 90 days after the licensee's death. S:\0rdinances\2008 \08 -06 Sex.doc Sec. 38 -455 Right of Inspections • The sexually- oriented business shall be subject to inspections of the business. The business shall permit access for law enforcement, health officials and /or any city employees who may need access in order to enforce compliance with the city code or any other laws. A license may be revoked or denied if the licensee denies access to the business for the purposes of making an inspection. Sec. 38 -456. Restrictions and Regulations Violations of these restrictions can be cause for denial or revocation. (a) No owner, manager, or employee may allow sexually- oriented materials or entertainment to be visible or perceivable in any manner, including aurally, at any time from outside of the business. (b) No owner, manager, or employee may allow a person under the age of 18 to enter the business. (c) No owner, manager, or employee may allow a person under the age of 18 to have access to sexually- oriented materials, whether by sight, purchase, touch, or another means. (d) No owner or manager may employ a person under the age of 18 on the licensed premises and shall maintain documentation of the name and age of all employees. This documentation shall be made available for inspection by law enforcement. • (e) No owner, manager, or employee may have been convicted of a sex crime, as identified in Minn. Stat. §609.293 through 609.352, 609.746 through 609.749, 609.79, 51813.01, or related statute dealing with sexual assault, sexual conduct, harassment, obscenity, or domestic abuse within the past five years. (f) There shall be no coverings or tablecloths on any of the tables, bars, and /or counters in the sexually - oriented business. (g) No business may exceed 10,000 square feet in gross floor area. (h) No owner, manager, or employee may allow a patron, employee, or other person on the premises to physically contact, in public view, a specified anatomical area of himself or herself, or of another person. (i) A live performer must remain at all times a minimum distance of 10 feet from members of the audience, and must perform on a platform intended for that purpose, that must be raised at least two feet from the level of the floor on which the audience is located. No performer may solicit or accept money, a tip, or other item from a member of the audience. (j) No business may have booths, stalls, partitioned portions of a room, or individual rooms, except as follows: (1) Restrooms are allowed as long as they are no larger than reasonable necessary to isserve the purposes of a restroom, no other activities are provided or allowed in the rooms, and there are no chairs, benches, or reclining surfaces in the rooms; and S: \Ordinances\2008 \08 -06 Sex.doc 9 (2) Storage rooms and private offices are allowed, if the storage rooms and offices are solely used for running the business and no person other than the owner, manager, • and employees is allowed in them. (k) No licensee shall operate before 9:00 a.m. or after 11:00 p.m. (1) A licensee is subject to the conditions in this section, all other provisions of this ordinance, and of other applicable regulations, ordinance, or state law. (m) A licensee is responsible for the conduct of his or her place of business and the conditions of order in it. The act of an employee of the licensed premises is deemed the act of the licensee as well, and the licensee is liable for all penalties provided by this ordinance equally with the employee, except criminal penalties. (n) The license must be posted in a conspicuous place in the premises for which it is used. (o) The layout of display and /or all public areas shall be designed so that the management of the establishment and /or law enforcement can observe all patrons at all times, while the patrons are in the business, from any other public location in the business. The only exception to this requirement is for restrooms, which shall be located within 50 feet of the public entrance /exit of the building. Sec. 38 -457 Process for Denial or Revocation Failure of any person to comply with any of the ordinances of the city or the laws of the state shall be • grounds for denying or revoking a license granted under this division. If a license is denied or revoked by the City Council, the city must notify the applicant with the reason(s). The applicant shall be allowed an opportunity for a hearing pursuant to Chapter 38, Article II of this Code. An applicant wishing to appeal the action of the City Council may seek a writ of certiorari before the Minnesota Court of Appeals. Sec. 38 -458. Fee: term (a) An applicant must pay the investigation fee specified in the city's fee schedule. This fee will be for the purpose of conducting a background and financial investigation of the applicant. There will be no refund of the investigation fee after the investigation has begun. (b) Fees for a license are set by ordinance on an annual basis in the city's fee schedule. (c) Each license expires on December 31" of the year in which it is issued. Fees for licenses issued during the license year will be prorated according to the number of months remaining in the year. Sec. 38 -459. Penalty Any person violating any provision of this ordinance shall be guilty of a misdemeanor, and upon conviction shall by subject to the penalties for a misdemeanor as prescribed by state law. Each day a violation continues shall be considered a separate misdemeanor offense punishable by a separate • misdemeanor penalty. A fine or sentence imposed does not affect the right of the city to suspend or revoke the license of the licensee as the Council deems appropriate. SAOrdinances\2008 \08 -06 Sex.doc 10 Passed and adopted by the City Council of the City of Elk River this 16`h day of June, 2008. • ATTEST: Tina Allard, City Clerk r� is SAOrdinances\2008 \08 -06 Sex.doc RESOLUTION 08 -45 A RESOLUTION OF THE CITY OF ELK RIVER A RESOLUTION APPROV- ING NOTICE OF SUAEVIARY PUBLICATION OF ORDINANCE #08-06 AN ORDINANCE REPEAL- ING ALL OF CHAPTER 38, ARTICLE TX, "SEXUALLY- ORIENTED LAND•USES," AND ADOPT- ING NEW CHAPTER 38, ARTICLE TX, "SEXUALLY - ORIENTED BUSINESSES," OF THE CITY CODE OF ORDINANCES WHEREAS, on June 16, 2008 the Elk River City Council adopted Ordinance 0$ -06 an Ordinance repealing Chapter 38, Article IX, titled "Sexually- Oriented Land Uses," and adopting a new Chapter 38, Article IX titled, "Sexually- Oriented Businesses," of the City Code of Ordinances; and WHEREAS, the adoption to the ordinance sets forth rules --sand regulations for sexually- oriented businesses, including the purpose of the ordinance, exemptions to the ordinance, licensing, investiga- tion, restriction requirements and grounds for denial or revo- cation; and WHEREAS, a copy of the* , full - text of this ordinance is avail - able by standard or electronic ,.mail or for inspection at the office of the Elk River City Clerk, 13065 "Orono Parkway, during regular business hours, 8:00 a,m. to 4:30 p.m., Monday through Friday; and NOW, THEREFORE, BE IT RESOLVED, that the City Council, by at least four - fifths vote, authorizes the publica- tion of the title and summary of Ordinance 08 -06, and that Ordinance 08 -06 shall become effective upon publication of this resolution. Passed and adopted this 16th day of June 2008. Stephanie Klinzing, ,ATTEST: Mayor Tina Allard, City Clerk (JUNE 25) AFFIDAVIT OF PUBLICATION STATE OF MINNESOTA COUNTY OF SHERBURNE SS Eric Olson, being duly sworn on oath says that he is the General Manager of the Newspaper known as the Star News, and has full knowledge of the facts which are stated below: (A) The Newspaper has complied with all of the requirements constituting qualifications as a qualified newspaper, as provided by Minnesota Statue 331A.02, 331A.07 and other applicable laws, as ammended. (B) The printed Resolution 08 -45 an Ordinance Repeal, which is attached was cut from the columns of said newspaper and was printed and published once a week for one week; it was first published on Wednesday, the 25th day of June, 2008, and was therefore printed and published on every Wednesday to and including Wednesday, the 25th day of June, 2008, and printed below is a copy of the lower case alphabet from A to Z, both inclusive, which is hereby acknowledged as being the size and kind of type used in the composition and publication of the notice abcdefghijklmnopgrstuvwxyz �s General Manager Subscribed and sworn to before me one'`"` " "' C�i�1DY M. SCHIMINSKI this 25th day of June, 2008 NOTARY PUBLIC MINNESOTA My comimssion Expires Jan. 31, 2010 Notary Public RATE INFORMATION (1) Lowest classified rate paid by commercial users for comparable space (2) Maximum rate allowed by law for the above matter (3) Rate actually charged for the above matter 1,273,504 :e (line, word or inch rate) $ 14.85 (line, word or inch rate) $ 14.85 (line, word or inch rate)