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HomeMy WebLinkAboutO-1477ORDINANCE NO. 1477 AN ORDINANCE REGULATING AND LICENSING SEXUALLY ORIENTED BUSINESSES BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF FAIRHOPE, ALABAMA, as follows: WHEREAS, the City of Fairhope has considered the impacts or secondary effects of sexually oriented businesses on the areas in which such activities are located; and WHEREAS, sexually oriented business activities can cause or contribute significantly to increase in criminal activity in areas in which they are located, thereby taxing crime prevention, law enforcement and public health services; and WHEREAS, sexually oriented business activities can cause or contribute significantly to deterioration of residential neighborhoods, can impair the character and quality of such neighborhoods and the housing located therein, reducing the value of property; and Wl IEREAS, sexually oriented business activities can contribute to an increase in the spread or in the distribution of infections and communicable diseases and illnesses; and WHEREAS, sexually oriented business activities can have distracting influence on young people and students attending schools, can harm the family atmosphere of people using parks, museums, libraries, playgrounds, and other public recreational areas, can interfere with the spiritual experience of those attending a place of worship, and can interfere with solemn and respectful contemplation at cemeteries, funeral homes, and similar facilities; and WHEREAS, sexually oriented business activities are perceived by the public and by neighboring business owners and residents as an indication that the areas in which such activities occur are in decline or are deteriorating, a perception that can lead to such decline and that can prompt businesses and residents to flee the affected area to avoid the consequences of such decline and deterioration; and WHEREAS, the exterior appearance, including signage, of sexually oriented business activities can have an adverse impact on young people and students and can contribute to the decline in property values: and WHEREAS, the harm, problems, and negative secondary effects caused by sexually oriented business activities are heightened and increased when two or more sexually oriented business (whether similar or different in nature and/or ownership) are located near one another; and WHEREAS, the City has a substantial public interest in the prevention of negative secondary effects of sexually oriented businesses; and WHEREAS, the Citv has found and determined that the regulations contained in this Ordinance allow for reasonable alternative avenues of communication; Section 1. Recitals. The foregoing recitals are incorporated herein as the findings and determinations of the Mayor and City Council of the City of Fairhope. Section 2. Short Title. This Ordinance shall be known as, and may be referred to as, the Fairhope Sexually Oriented Business Ordinance. Section 3. Power and Authority. The City of Fairhope has the power and authority to adopt and enforce the terms, conditions and regulations established in this Ordinance pursuant to its police powers to protect the public health, safety, morals and general public welfare, to address, mitigate and if possible eliminate the adverse impacts and secondary effects of sexually oriented business activities on the areas in which such sexually oriented business activities are located. Ordinance No. 1477 Page — 2 — Section 4. Definitions. Unless the context clearly indicates otherwise, for the purposes of this Ordinance, the following words, combinations of words, terms and phrases shall have the following meanings: City. The City of Fairhope, Alabama. Planned Unit Development. gent. A zoning district which permits a combination of residential and commercial uses within a single development. Park. A public part: or recreational area which has been designated for park or recreational activities including but not limited to a park, playground, nature trail, swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian/bicycle path, wilderness area, or other similar public land within the City which is under the control, operation, or management of either the City, Baldwin County, the State of Alabama, or the United States Government. School. A public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities. This term includes all of the school grounds and connected or related facilities. Sexually Oriented Business. Any adult arcade, adult bookstore, adult motion picture theater, adult motion picture rental, adult mini -motion picture theater, adult steam room/bathhouse/sauna facility, adult companionship establishment, adult rap/conversation parlor, adult massage parlors, adult health/sport club, adult cabaret, adult novelty store, adult motion picture arcade, adult modeling studio, adult hotel/motel, adult body painting studio, escort, escort agency, sexual encounter establishment, nude studio, or any other commercial or business enterprise which has as a primary focus of its business the offering for sale, rent, or exhibit, or the exhibit of, items or services intended to provide sexual stinniiation or sexual gratification to the customer, or which places an emphasis on the presentation, display, depiction or description of sexual activities or of nude persons. The term Sexually Oriented Business, however, shall not be construed to include: (a) professional offices or schools of licensed physicians, chiropractors, psychologists, physical therapists, teachers or similar licensed professionals performing functions authorized under the license(s) held; or (b) establishments or businesses operated by or employing licensed cosmetologists or barbers, performing functions authorized under licenses held. Section 5. Prohibition. No person or entity shall own, establish, operate, manage, maintain, or act as an Employee in any Sexually Oriented Business within the corporate limits or police jurisdiction of the City of Fairhope except within the regulations and conditions enumerated in this Ordinance. Section 6. License Required. It is unlawful for any Sexually Oriented Business to be open to the public or to otherwise operate within the corporate limits or police jurisdiction of the City without a valid and subsisting License from the City. Section 7. ManaQCr Required. It is unlawful for any Sexually Oriented Business to be open to the public or to otherwise operate within the corporate limits or police jurisdiction of the City without an Operator or Manager on the Licensed Premises during all hours of operation. Section 8. Prohibited in Certain Areas. Sexually Oriented Businesses are prohibited in the corporate limits of the City of Fairhope in the following areas, locations, and zones: (a) within any zoning district other than those where Sexually Oriented Businesses are expressly permitted; Ordinance No. 1477 Page — 3 — (b) within 1,000 linear feet of a residential zoning district or a residential area or a Planned Unit Development; (c) within 1,000 linear feet of any pre-existing residence located in a non-residential zone; (d) within 1,000 linear feet of any non-residential zoning district or non-residential area of any Planned Unit Development District which does not expressly permit Sexually Oriented Businesses; (e) within 1,000 linear feet of a pre-existing place of worship, School, Park, museum, library, cemetery, or funeral home; (f) within 2,000 linear feet of any other Sexually Oriented Businesses; or (g) within the same building, structure, or portion thereof, as any other Sexually Oriented Business. For purposes of this section, all measurements shall be made in a straight line without regard to the intervening structures or objects and shall be made from the property line of the premises on which the Sexually Oriented Business operates or wishes to operate to the nearest property line of the subject district, area, use or premises. Section 9. Permitted in Certain Areas Subject to the spacing and minimum distance prohibitions contained in this Ordinance, a sexually oriented business is a permitted use only within those areas of the City zoned B-2 General Business District and M-I Light Industrial District. Section 10. License Application. Every application for a License under this Ordinance shall be made on a form supplied by the City and shall be filed with the Revenue Department. Such application shall contain the following information, and failure to complete or supply such information may cause an application for a license to be denied. 1. The true name, address, and telephone number of the applicant, and the business entity (if different). 2. The address and legal description of the real property containing the premises to be licensed, the floor plan of the premises, and the applicable zoning district in which it lies (if within the corporate limits). 3. Whether the applicant is licensed in this or any other city or county or has had a license suspended or revoked, or has been denied a license, or has been the subject of any other license -related discipline, in connection with any of the activities required to be licensed under this Ordinance; and if so, when and where the applicant is or was so licensed or disciplined, has had a license suspended or revoked, or has been denied a license. 4. A specific statement as to the specific type and nature of Sexually Oriented Business to be licensed. 5. The name of the Manager(s) and Operator(s) in charge of the business to be licensed (one of which is required to be on premises during all hours of operation), along with two (2) color photographs of each such person taken within six months of the date of application showing only the full face of the individual. 6. If the applicant is a natural person: (a) Applicant's place and date of birth. (b) Whether the applicant has ever used or has been known by a name other than the applicant's true name; and if so, such name or names and information concerning dates and places where used. (c) The name of the business if it is to be conducted under a designation, name or style other than the full individual name of the applicant; in such case, a certified copy of certificate from the Secretary of State registering or establishing such name, shall be attached to the application. Ordinance No. 1477 Page — 4 — (d) The street address and city at which applicant has lived during the preceding five years. (e) The kind, name and location of every business or occupation the applicant has been engaged in during the preceding five (5) years. (f) The names and addresses of the applicant's employer(s) and partner(s), if any, for the preceding five (5) years. ((Y) Whether the applicant has ever been convicted of or pleaded guilty or nolo contendre to any felony, crime or violation of any provisions of federal, state or local law other than traffic violations and petty misdemeanors for which no jail sentence could be imposed. If so, the applicant shall furnish information as to the time, place and offense for which convictions were had. (h) If the applicant is married, applicant shall provide the name of applicant's spouse and shall provide for said spouse the information required in Subdivisions. t and 3 and in paragraphs (a), (b), and (d) through (g) above. (i) The name and address of each person, other than the applicant, who has any ownership, in whole or in part, in the business, buildings, premises, or stock in trade of the business to be licensed; the nature of such ownership; the amount thereof, and the terms for payment or other reimbursement. (j) Two (2) color photographs of the applicant taken within six months of the application showing only the full face. (k) A complete set of fingerprints for the applicant taken by City of Fairhope Police Department. (I) Such other information as the City may require to determine the applicant's true identity, character, veracity, or ability to conduct a Sexually Oriented Business in a manner that minimizes the adverse secondary effects thereof. 7. If the applicant is a partnership: (a) The names, addresses and interest of all partners and all information concerning each partner as is required of an individual applicant in Subdivision 6 above. (b) The name of the Manager(s) or Operator(s) of the business to be licensed and all information concerning said person(s) as is required in Subdivision 6 above. (c) A true copy of the partnership agreement shall be submitted with the application. (d) Such other information as the City may require to determine the applicant's true identity, character, veracity, or ability to conduct a Sexually Oriented Business in a manner that minimizes the adverse secondary effects thereof. 8. If the applicant is a corporation, limited liability company or other form of business entity: (a) The business entity's true name and the state of incorporation or organization. (b) A true copy of a Certificate of Good Standing no more than thirty (30) days old from the state of incorporation or organization; the Articles of Incorporation or Organization; the Association Agreement; the Bylaws; and any other governing or establishing documents shall be attached to the application. If the applicant is a foreign corporation or entity, a Certificate of Authority shall also be attached which proves that the applicant is registered to do business in the state of Alabama. (c) A list of all persons who are officers and directors of the corporation or organization or who control or own an interest in excess of five percent (5%) in such corporation or organization, and all information concerning said person(s) as is required in Subdivision 6 above. Ordinance No. 1477 Page — 5 — (d) Such other information as the City may require to determine the applicant's true identity, character, veracity, or ability to conduct a Sexually Oriented Business in a manner that minimizes the adverse secondary effects thereof. 9. All applications shall be signed and sworn to in the presence of a Notary Public. If the applicant is a natural person, it shall be signed and sworn to by such person; if by a corporation, by an officer thereof, if by a partnership, by one of the partners; and if by an unincorporated association, by the manager or managing officer thereof. 10. Any Licensee shall have a continuing dirty to immediately disclose in writing to the City any change in the information supplied in an application. 11. The applicant shall authorize the City, its agents and employees to investigate and seek information to confirm or verify any statements or representations made in the application. 12. The applicant shall verify, under penalty of perjury that the information contained in the application is true. Section 11. License Prohibited to Certain Classes of People. No License shall be issued to: 1. A natural person who has not attained the age of 21 years. 2. A partnership, unless all the partners are qualified to obtain a License as provided in this Ordinance. Such License shall be issued to the partnership in its legal name. 3. A corporation, unless all the officers and directors thereof are qualified to obtain a License as provided in this Ordinance. Such License shall be issued to the corporation in its legal name. 4. Any other form of business entity unless all the owners, officers, managers, and principals are qualified to obtain a License as provided in this Ordinance. Such License shall be issued to the business entity in its legal name. Section 12. Application Fee. A non-refundable application fee of THREE THOUSAND DOLLARS ($3,000.00) must be paid to the Revenue Department at the time of filing an application in order to defray the costs of processing the application. Section 13. Processing License Applications. A. Within three (3) days after receipt of a fully completed application for a Sexually Oriented Business, including the required documents and Application Fee, the Revenue Department shall transmit a copy of the application to the Police, Building and Planning department or administrators (hereafter, the "Reviewing Departments). B. Each of the Reviewing Departments shall, within 25 days after transmittal of the application thereto, (i) review the application; (ii) conduct such inspections of the proposed Licensed Premises and background investigations of the applicant and any of the shareholders, owners, officers, directors, partners, Managers and Operators identified in the application regarding matters within their respective jurisdictions as may be reasonably necessary to confirm and verify the information set forth in the application and to determine whether the proposed Sexually Oriented Business and Licensed Premises complies with the requirements of this Ordinance and other applicable laws, codes, ordinances, rules, and regulations; and (iii) prepare and submit to the Revenue Department a written report regarding the results and findings of such reviews, inspections, and investigations. C. The Revenue Department shall also conduct such inspections and investigations as it deems necessary and appropriate to confirm and verify the information set forth in the application and to determine whether the proposed Sexually Oriented Business and Licensed Premises complies with the requirements of this Ordinance and other applicable laws, codes, ordinances, Riles, and regulations. Ordinance No. 1477 Page — 6 — D. An applicant, including all owners, officer, shareholders, directors, partners, Managers and Operators disclosed in an application, shall cooperate fully in the inspections and investigations conducted by the Revenue Department and the Reviewing Departments. The applicant's failure or refusal (i) to give any additional, supplemental, or other information reasonably relevant to the Investigation of the application; (ii) to allow the premises to be inspected; (iii) to appear at any reasonable time and place for examination under oath regarding the application; or (iv) to otherwise cooperate with the investigation and inspection required by this Ordinance, shall constitute an admission by the applicant that the applicant is ineligible for a License and shall be grounds for denial of the License by the Revenue Department. G. The Revenue Department shall, within 35 days after the submittal of a fully and properly completed application, either issue or deny the License requested pursuant to the provisions of this Ordinance. The Revenue Department shall issue or deny the License requested within said 35-day period regardless of whether or not the Revenue Department has received any or all of the Reviewing Departments' reports. F. The action taken by the Revenue Department to issue or deny a License shall be final and shall be subject to judicial review. Section 14. Standards for Issuance or Denial o1' License. A. Issuance. The Revenue Department shall issue a License to an applicant only if the Revenue Department finds and determines all of the following, based on the reports, investigations, and inspections conducted by the Revenue Department and the Reviewing Departments and on any other credible information on which it is reasonable for the Revenue Department to rely: 1. All information and documents required to be filed with the License Application, have been properly provided and the material statements made in the application are true and correct. 2. All persons identified in the application are at least 21 years of age and not under any legal disability. 3. No person identified in the application has been convicted of or pleaded guilty or polo contendre to any criminal activity of a sexual nature within five years immediately preceding the date of the application. 4. No person identified in the application has been convicted of or pleaded guilty or polo conlendre to any violation of a provision of this Ordinance within five years immediately preceding the date of the application. 5. No person identified in the application is residing with, or married to, a person (i) who has been denied a License within 12 months immediately preceding the date of the application, (ii) whose License has been revoked within 12 months immediately preceding the date of the application, or (iii) whose License is under suspension at the time of application. 6. The Sexually Oriented Business, the Licensed Premises, and the proposed operation of the Sexually Oriented Business, complies with all then -applicable building, health, life, zoning, property maintenance and safety codes and regulations. 7. The applicant has confirmed in writing and under oath as part of the application that the applicant has read this Ordinance, that the applicant is familiar with their terms and conditions, and that the Licensed Premises and the proposed Sexually Oriented Business and its proposed operation are and shall be in compliance therewith. B. Denial. If the Revenue Department determines that the applicant has not met any one or more of the conditions set forth in Subsection A of this Section, then the Revenue Department shall deny issuance of the License and shall give the applicant written notification of such denial. The Revenue Department's notice of denial shall be delivered in person or by certified U.S. mail, postage prepaid, return receipt requested, addressed to the applicant's address as set forth in the application. Ordinance No. 1477 Page — 7 — The License shall be deemed denied on the day that the notice of denial is delivered in person or three days after it is placed in the U.S. mail as provided in this Subsection. Section 15. License Pecs. The annual License Fee for each Sexually Oriented Business shall be calculated and collected in same amount and manner as license fees are charged and collected for similar types of businesses (e.g., retail sales, alcoholic beverages, services) that are not sexually oriented in nature. Section 16. Renewal of License. Renewal Applications require the same Application fees and information as original License Applications. Completed renewal applications shall be filed with the Revenue Department at least thirty-five (35) days, but no sooner than seventy (70) days, prior to the expiration of the License together with payment of the required Application Fee and License Fee in order to avoid interruption of business. Section 17. License Terms. A. A License issued under this Ordinance must be posted in a conspicuous place in the Licensed Premises for which it is issued. B. A License issued under this Ordinance is only effective for the compact and contiguous space specified in the approved License application. C. Each License shall be issued to the applicant only and shall not be transferable to another person, entity, holder or location. No Licensee shall loan, sell, give or assign a License to another person or location. Any change in the makeup, percentage ownership or composition of the persons named as partners, owners, directors, shareholders, officers, members, Managers or Operators of any Sexually Oriented Business shall be deemed a transfer for Purposes of this Section. Any such change and any transfer or sale of a Sexually Oriented Business shall be reported by the existing Licensee immediately to the Revenue Department. Any new owner, partner, director, shareholder, officer, member, Manager or Operator wishing to continue operating a Sexually Oriented Business must immediately apply for and obtain a License under this Ordinance. Provided, however, that if the Licensee is a limited partnership, a change in the limited partners of less than twenty-five percent (25%) cumulatively over the license period, shall not be deemed a transfer. The change in or addition of a Vice -President, Secretary, or Treasurer of a corporate Licensee shall not be deemed a transfer. Section 18. Business Restrictions and Regulations A. No Sexually Oriented Business or Licensed Premises may be open for business, and no Patrons shall be permitted on the Licensed Premises: (1) between the hours of 11:00 PM and 8:00 AM on any weekday or Saturday; (2) at any time on a Sunday; or (3) at any time on any legal State or federal holiday. B. No Licensee, Manager or Operator shall permit or allow any person under the age of eighteen (18) years to enter the Licensed Premises of a Sexually Oriented Business, and no person under the age of twenty-one (21) are allowed on the premises of any Adult Cabaret or any other Sexually Oriented Business featuring live entertainment. C. No product, service, merchandise or item offered for sale or rental at the Licensed Premises or any activities which occur inside the Licensed Premises, nor any depiction of the foregoing, shall be visible fi•om any point outside the Licensed Premises. D. Where a reasonable basis is found by the City to impose other reasonable restrictions upon a Licensee, taking into consideration one or more of the facts or circumstances set forth in this Ordinance, the City may, upon issuance or renewal of a License, impose such additional reasonable conditions and restrictions on the manner and circumstances under which the licensed activity shall be conducted to minimize any adverse secondary effect of the Sexually Oriented Business and to preserve the public peace and protect and promote the public's health, safety, welfare, good order and security. Ordinance No. 1477 Page — 8 — E. The Licensee is responsible for the conduct of himself or herself, the Licensed Premises, the Employees and the Patrons, and the Licensee shall not allow any illegal activity to take place on or adjacent to the Licensed Premises. Specifically, but not by way of limitation, a Licensee shall supervise the Licensed Premises and prevent any Specified Sexual Activities and any Specified Criminal Acts as defined herein, and shall not allow any person to engage in prostitution, indecent exposure, disorderly conduct, or to sell or use illegal drugs on the Licensed Premises or in any area adjoining the Licensed Premises. F. The Licensee shall engage in practices designed to assure health, cleanliness and good repair of the Licensed Premises and which are designed to resist anything detrimental to the public's health, safety or welfare. Good repair shall mean compliance with the City's Building and Property Maintenance Codes, as well as lack of corrosion, breaks, cracks, chips, pitting, excessive wear and tear, leaks, obstructions, and similar defects so as to constitute a good and sound condition. Cleanliness shall include, but not be limited to, the absence of dirt, grease, rubbish, garbage, semen, bodily excretions, and other offensive, unsightly, or extraneous matter. Section 19. Suspension or Revocation of License. The City may suspend a License for any period of time up to sixty (60) days or revoke a License upon a finding of one or more grounds for suspension or revocation listed in the subdivisions of this Section. Except as otherwise provided below, any such suspension or revocation shall be conducted following the procedures specified in this Ordinance, and following a public hearing. In addition, the City may, Without anV notice, suspend any License pending a hearing on revocation for a period not exceeding thirty (30) days, which suspension shall be communicated to the Licensee personally or by leaving the same at the Licensed Premises with the Manager or Operator. Any one of the following shall be grounds for suspension or revocation of a License: 1. Failure to comply with any of the ordinances of the City, or any other local, state or federal laws. 2. Control, use or possession by the owner, Manager, Operator or any Employee of the Licensed Premises of any narcotic drugs or controlled substances which is prohibited by federal, state or local law. 3. Conviction of the owner, Manager, Operator or any Employee of the Licensed Premises of a violation of any ordinance or State statute or any rule promulgated under either, arising on the Licensed Premises. 4. Conviction of the owner, Manager, Operator or any Employee of the Licensed Premises of prostitution or any other crime or violation involving moral turpitude or sexual misconduct. 5. Failure to promptly notify the City of any material change in the information with the application for a License. 6. Failure of the Licensed Premises to comply with any health, safety, zoning or building regulations of the City, Baldwin County, or the state of Alabama. 7. Presence of the Licensed Premises is found to be detrimental to the health, safety or welfare of the citizens of the City. Evidence of any such detrimental effect would include, but not be limited to, increased policing or related service calls. 8. Evidence of a material variance, without prior approval of the City, in the actual plan and design of the Licensed Premises from the plan submitted with the application or from the on-,inal design ofthe premises when initially licensed Section 20. Inspection by City Officers and Identification of Employees. During any hours in which any Patron, Manager, Operator or Employee is present on the Licensed Premises, such Licensed Premises shall be open to inspection by public health authorities and City building and license inspectors and police and fire officers. Upon demand by any police officer, any Manager, Operator, Employee, and Patron in any Licensed Premises shall provide his/her true legal name, age, correct address, and proof of the same. Failure to allow an unimpeded inspection or failure to provide proof of identifying information shall be a violation of this Ordinance Ordinance No. 1477 Page — 9 — Section 21. Penalty Every person, entity or Licensee who commits or attempts to commit, conspires to commit or aids or abets in the commission of any act constituting a violation of this Ordinance, whether individually or in connection with one or more other persons or as principal, agent, or accessory, shall be guilty of a misdemeanor and shall be subject to suspension or revocation of any License issued to such person or entity and may be fined up to $500 and be sentenced to up to six months in jail or hard labor. Every person who falsely, fi•audulently, forcibly or willfully induces, causes, coerces, permits or directs another to violate any of the provisions of this Ordinance or any rule promulgated there under, is also guilty of a misdemeanor. Section 22. Severability. The sections, paragraphs, sentences, clauses and phrases of this ordinance are severable, and if any phrase, clause, sentence, paragraph or section of this ordinance shall be declared unconstitutional by a court of competent jurisdiction, then such ruling shall not affect any other paragraphs and sections, since the same would have been enacted by the municipality council without the incorporation of any such unconstitutional phrase, clause, sentence, paragraph or section. Section 23. Effective Date. This ordinance shall take effect immediately upon its due adoption and publication as required by law ADOPTED THIS 24TH DAY OF SEPTEMBER, 2012 Kant, Ma ATTEST: rr isa'A. ks, M C City Clerk