Chapter 3 – Adult Entertainment

Last updated March 2011

Sections:

3.010     Legislative intent and purpose

3.020     Definitions

3.030     Licenses generally

3.040     Location and conditions for operation; license application

3.050     Severability

Section 3.010     Legislative intent and purpose

The purpose of this chapter is to recognize and to provide for the fact that the operation of adult entertainment centers or adult establishments and the operation of associated mechanical amusement devices which depict or display specified sexual activities or specified anatomical areas results in increased enforcement problems for the city and additional expense to the city that justifies a higher license fee for these centers, establishments or devices than for other mechanical amusement devices, establishments or centers. This follows because it is not immediately possible to distinguish between constitutionally protected nonobscene depictions or portrayals of explicit sexual conduct, on one hand, from nonconstitutionally protected obscene portrayals of sexual conduct on the other hand. This necessitates greater police vigilance to assure that the lawful business of displaying nonobscene portrayals or depictions of sexual conduct is not used inadvertently or by design as the means of unlawfully displaying or depicting obscenity. In order to recoup some of the costs thus imposed on the city, it is appropriate that there be imposed on the persons who profit from such devices, centers or establishments some of the costs of insuring that the devices, centers or establishments are used only lawfully. For the purposes of promoting the health, safety, morals or general welfare of the city residents as authorized by state law, the state has provided certain powers to the city in furtherance thereof. In addition to the increased enforcement problems for the city and additional expense, it is necessary that the city specify certain zoning areas and establish certain regulations pertaining to licensing adult entertainment centers or adult establishments and associated mechanical amusement devices, delineating the placement of such centers, establishments or devices in certain specified zoning areas and requiring certain information, before licensing such centers, establishments or devices and placement of such businesses. (Ord. No. 814, § 1.)

Section 3.020     Definitions

            For the purposes of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

            Adult Bookstore. A bookstore having as a preponderance of its publications books, magazines and 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, or which  also sells sexually oriented devices as herein defined in conjunction with their business as defined herein.

Adult Cabaret. Any commercial premises or private club, to which a member of the public or a club member is invited or admitted, and where an entertainer provides live entertainment or activity that includes any exhibition, performance or dance of any type involving a person who performs in such clothing or removes such clothing such that the areola of the female breast or any portion of the pubic area, anus, buttocks, vulva or genitals are less than completely and opaquely covered.  This definition shall include the following:

▪           any exhibition, performance or dance involving the performance of acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts prohibited by law.

▪           the actual or simulated touching, caressing or fondling of the breast, buttocks,        anus or genitals.

▪           the actual or simulated display of pubic hair, anus, vulva or genitals, or the            nipples of a female.

▪           appearances, entertainment or performances of any type consisting of or containing any nude performer or topless female dancer. 

▪           any exhibition, performance or dance that is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the premises activity. 

            Adult Establishment or Adult Entertainment Center. An adult bookstore, an adult cabaret,

an adult motion picture theater, or an adult mini-motion picture theater, all as defined in this section, or any other business the preponderance of whose activities or sales are designed to display, show, perform or depict specified sexual activities or specified anatomical areas as defined in this section, or which may otherwise be designed to sexually arouse any member of the public.  Any establishment or center that displays or sells sexually oriented devices as herein defined as a preponderance of its business is also an adult entertainment center or adult establishment within the meaning of this section.

            Adult Mini-Motion Picture Theater. An enclosed building with a capacity for less than fifty persons and which is used for presenting motion pictures, a preponderance of which are 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, for observation by patrons of the theater.

Adult Motion Picture Theater. An enclosed building with a capacity of fifty or more persons and which is used for presenting motion pictures, a preponderance of which are 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, for observation by patrons of the theater.   

Mechanical Amusement Device. Without limitation, any machine which, upon the insertion of a coin or the payment of consideration, operates or may be operated for use as a game, contest or amusement of any description, or which depicts, displays or projects, directly or indirectly, pictures, photographs or other visual images.

            Sexually Oriented Device. Without limitation, any artificial or simulated specified anatomical area or any other device or paraphernalia that is designed, in whole or in part, for specified sexual activities.

            Specified Anatomical Areas.

(a)        Less than completely and opaquely covered human genitals and pubic        regions, buttocks or female breasts below a point immediately above the      top of the areola.

(b)        Human male genitals in a discernibly turgid state, even if completely and   opaquely covered.

            Specified sexual activities.

            (a)        Human genitals in a state of sexual stimulation or arousal;

            (b)        Actual or simulated acts of human masturbation, sexual intercourse or                                sodomy; or

(c)        Fondling or other erotic touching of human genitals and pubic regions,       buttocks or female breasts. (Ord. No. 814, § 1.)

Section 3.030     Licenses generally

(a)        The annual license fee for adult entertainment centers or adult establishments and mechanical amusement devices shall be as follows:

(1)        For each entertainment center or adult establishment, two thousand            dollars. ($2,000), or as may otherwise be determined by the Board of City   Commissioners by resolution and incorporated into the City’s fee          schedule.

(2)        For mechanical amusement devices used on a regular basis to depict or      display specified anatomical areas or specified sexual activities as defined herein, three hundred dollars ($300) per machine per year, irrespective of the number of machines owned by any one person, or as may otherwise be           determined by the Board of City Commissioners by resolution and incorporated into the City’s fee schedule. 

(b)        The owner of any mechanical amusement device shall furnish a complete list of all devices owned or operated subject to licensing, with an indication thereon of the location of each machine and a list of all films used and the date of any film or placement during the license period.

(c)        The fees provided for herein shall be payable on July 1 of each year and prorated on a daily basis if the license becomes effective at any time other than July 1.

(d)       No license issued under the provisions of this chapter shall be transferable by a licensee, and any attempt to do so shall constitute a violation of this chapter; provided, that upon the death of the licensee, the license may be transferred to the executors or administrators of such deceased licensee. For the purposes of this section, the transfer of twenty-five percent or more of the capital stock of any licensee corporation or the change in the vesting of voting rights of over twenty-five percent of the stock of the licensee corporation shall be considered a transfer and change of ownership, and in such event a new license must be obtained by such corporation. (Ord. No. 814, § 1.)

(e)        A license may only be issued to the owner of the center or establishment.

Section 3.040     Location and conditions for operation; license application

            Notwithstanding anything in Chapter 39 of this Code and this chapter to the contrary, an adult entertainment center or adult establishment shall be allowed to operate only in General Industrial (GI) or Light Industrial (LI) zoning districts and in no other zoning district, provided the center or establishment meets the following conditions:

(a)        The center or establishment is located no closer than one thousand two       hundred (1,200) feet from any preexisting church, school, private      residence, residentially-zoned property, or downtown commercial zoned     property.

(b)       The center or establishment excludes from its premises those persons less than eighteen years of age.

(c)        The center or establishment displays no signs visible from the exterior of   the center, except non-obscene signs identifying the center as an adult entertainment center or adult establishment as defined herein.

(d)       No materials depicting specified sexual activities or specified anatomical   areas shall be visible from the exterior of the center or establishment.

(e)        The manager and the owners of the center or establishment are registered   with the chief of police and have provided him with such information as is   reasonably required herein with respect to names, addresses, fingerprints           and prior criminal records or criminal convictions associated with the          operations of the business of adult entertainment centers or adult            establishments in particular, if any.

(f)        The business premises of the center or establishment that are generally       open to its patrons shall be closed to its patrons from 1:00 A.M to 8:00             A.M. daily, except 12:01 A.M. on Sundays to 8:00 A.M. the following            day.

(g)       The center or establishment is licensed by the city.

(h)       Any person who is eligible for a license as provided  herein may obtain a   license as delineated herein within the city, if otherwise entitled thereto          under this chapter and upon fully complying with all of the provisions of             this chapter, by executing, under oath, forms provided by the city      administrator and/or the chief of police, setting forth the name, citizenship       and place of residence of the applicant and the legal description of the             premises where the center or establishment is proposed to operate its          business, together with such detailed description of the premises and facilities as the city administrator or chief of police may require. The    application shall have attached to it a receipt of the county treasurer          showing that all taxes of the applicant on real and personal property levied and assessed him are paid. The application must also show the age of the   applicant if an individual, the name, place of residence, citizenship and the        age of each partner if the applicant is a partnership and if the applicant is a      corporation, either private or municipal, the name, place of residence, citizenship and age of each officer, director, manager and any stockholder     owning more than five percent of the stock in such corporation.

(i)        Every applicant shall be required, as a portion of his written application, to             promise and agree to abide by and obey all applicable laws of the state and            all applicable ordinances of the city so far as such laws or ordinances may      be concerned with his operation of the licensed premises and any activities       conducted thereon. There shall also be incorporated on any such   application the following consent, which shall be signed by the applicant:        “The applicant herein does expressly consent that any member of the             Board of City Commissioners, any police officer of the city and city           attorney or any person or persons duly authorized by the Board of City Commissioners may enter upon the premises described in this application            at any reasonable hour of the day or night; and at such time they shall have        free access to all portions of the property comprising the licensed premises          for the purpose of inspecting such premises for any possible violation of    any of the laws of the state or any of the ordinances of the city, whether            they pertain specifically to the operation of the business or not. Such      access shall be permitted for such purposes without the necessity of a    search warrant.”

(j)        In addition to the provisions required of all applicants, all new applicants   or those who previously have not been granted a license under this chapter          shall be required to furnish the following:

(1)       Such applicant shall furnish a complete statement of the      type of business contemplated and give a comprehensive     description of its physical layout.

(2)       Each applicant shall submit a complete financial statement,             detailing all his assets and liabilities of every nature and      description and including all property interests of every nature and description.

(3)       Each applicant shall cooperate to the fullest extent in           obtaining and submitting to the city auditor administrator        and/or city police chief complete military and police records concerning any persons involved with the applicant         organization. Each applicant shall prepare and submit a             complete history of his business experience.

(4)       The applicant shall show a history of his residency and        employment for five years immediately prior to the date of           the application. If the applicant is a partnership, this            information shall be furnished for all of the partners; and if      a corporation, the amount of authorized capital, the amount            paid in capital, whether such corporation is a subsidiary of any corporation and, if so, the name of the parent            corporation, the purposes for which the corporation was            incorporated and the names and addresses of all officers, directors and managing agents and the names and addresses             of all stockholders holding more than five percent of the      capital stock of such corporation shall be furnished.

(5)       The applicant shall state the name and address of the legal   title owner of the premises for which the license is sought,         and if the license is sought for a person other than the      owner of the premises, the terms and conditions of the lease      under which the applicant holds the possession of such             premises shall be stated, insofar as the terms of the lease      and the rental to be paid are concerned. The applicant shall, when required by the Board of City Commissioners,          furnish to the Board a copy of the lease under which he          holds possession of the premises. If the license is sought by             the owner of the premises, the application shall state the      time when such applicant acquired title thereto.

(6)       The applicant shall state whether he has ever engaged in the            form of business he is applying for prior to the date of      application, and if so, the date and type of business and the       place where such business was conducted shall be            furnished.

(7)       It shall be stated whether the applicant has ever had a           license for such business revoked or canceled by any     municipality, state or federal authority, and if so, the date   of cancellation, the place and authority canceling the same          and the reasons for such cancellation shall be stated.

(8)       It shall be stated whether the applicant has ever been            convicted of a violation of any law of the United States or            of any state or of the violation of any local ordinance, and if so, the dates, names of places and courts in which such convictions were obtained.

(9)       The applicant shall state whether any other persons other     than the applicant have any right, title or interest in the          leasehold or in the furniture and fixtures of the premises for          which the license is sought, and if so, names and addresses   of such persons, together with a statement of the interest             held, shall be furnished.

(10)     It shall be stated whether the applicant has any agreement,             understanding or intention to have any agreement or             understanding with any person to obtain for any other          person or to transfer to any other person the license          obtained or to use the license for any other purpose other          than the specific use of the applicant, and if so, the names        and addresses of such persons and the conditions of such             agreements shall be stated.

(11)     The applicant shall state whether he has any interest             whatsoever, directly or indirectly, in any other similar      business within or without the state, and if so, the names,      addresses and details concerning such establishments shall    be furnished.

(k)       All portions of the licensed premises to which members of the general        public are admitted shall be readily visible from immediately within the          front entrance of the center or establishment; and the center or     establishment shall contain no private booths or other areas screened off or   otherwise not visible from immediately within the front entrance of the             center or establishment, ordinary restrooms or bathrooms excepted;            provided that any entrance and exit to such restrooms or bathrooms is            readily visible from immediately within the front entrance of the center or          establishment.  No member of the public shall be permitted at any time to         enter into any of the non-public portions of the licensed premises, which        shall include but are not limited to: the dressing rooms of entertainers or             other rooms provided for the benefit of employees, the kitchen and storage             areas; provided that persons delivering goods and material, food and             beverages, or performing maintenance or repairs to the premises or             equipment may be permitted into non-public areas to the extent necessary        to perform their job duties. 

(l)         The center or establishment shall not sell, distribute, or permit the   consumption of any alcohol or other intoxicating substance on the           premises of the center or establishment.

(m)      No center or establishment may be located within one thousand two           hundred (1,200) feet of any other center or establishment licensed herein.

(n)       The following standards of conduct shall be observed and adhered to by     all employees and entertainers of any center or establishment:

(1)       No employee or entertainer shall be unclothed or in less       than completely opaque attire so as to expose to view any            portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or          genitals.

(2)       No employee shall caress, fondle, or erotically touch any     member of the public.  No employee or entertainer shall             encourage or permit any member of the public to caress,          fondle or erotically touch any employee or entertainer. 

(3)       No employee or entertainer shall perform any actual or        simulated act of sexual conduct as defined in this Chapter,       or any act that constitutes a violation of NDCC Chapters 12.1-27.1 or 12.1-27.2, or which may otherwise be a      criminal violation under North Dakota state law.  

(4)       No employee or entertainer shall conduct any dance,            performance or exhibition in or about the non-stage area of           the center or establishment for less than all members of the          public present in the center or establishment.

(5)       No employee or entertainer shall accept tips or gratuities in advance of their performance.  No employee or entertainer         shall accept tips or gratuities directly from patrons.  All tips       or gratuities shall be deposited in a receptacle provided by            the center or establishment.

(6)       The performance area where any performance, exhibition    or dance where adult entertainment is provided shall be a       stage or platform at least eighteen (18) inches in elevation        above the level of the patron seating areas, and shall be     separated by a distance of at least six (6) feet from all areas             to which members of the public have access.  A continuous             railing at least three (3) feet high and located at least six (6)             feet from all points of the performance area shall separate           the performance area from the patron seating area. 

(7)       Sufficient lighting shall be provided and equally distributed             throughout the public areas of the premises so that all          objects are plainly visible at all times. 

(8)       A sign at least two feet by two feet, with letters at least one inch in height shall be conspicuously displayed in the          public areas of the premises, stating as follows:

THIS CENTER OR ESTABLISHMENT IS REGULATED BY THE CITY OF DICKINSON.  ENTERTAINERS ARE:

(1)       NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT

(2)       NOT PERMITTED TO APPEAR NUDE     OR SEMI-NUDE

(3)       NOT PERMITTED TO ACCEPT TIPS OR             GRATUITIES IN ADVANCE OF THEIR             PERFORMANCE

(4)       NOT PERMITTED TO ACCEPT TIPS         DIRECTLY FROM PATRONS AT ANY TIME.  TIPS MAY BE DEPOSITED IN         THE RECEPTICLE PROVIDED BY THIS   CENTER OR ESTABLISHMENT. 

                        (Ord. No. 814, § 1; Ord. No. 1409 §1)

Section 3.050     Severability

(a)        The City may, upon recommendation of the City Administrator, suspend or revoke any license issued under this Chapter at any time for the following reasons:

(1)        The licensee has violated or failed to comply with any provision of this Chapter.

(2)       The license was procured by fraud or false representation of fact.

(3)       Any agent, servant, partner, business associate or employee, of the licensee has     violated any provision of this Chapter under circumstances where the licensee    knew or should have known of the violation. 

(4)        The conviction of the licensee of any crime involving prostitution, promoting        prostitution, or transactions involving controlled substances committed on the    licensed premises

(5)       The conviction of the licensee of any crime involving moral turpitude. 

(b)       A license procured by fraud or misrepresentation shall be revoked. Where other violations of this Chapter or other applicable ordinances, statutes or regulations are found, the license shall be suspended for a period of 30 days upon the first such violation, 90 days upon the second violation within a 24 month period, and revoked for the third and subsequent violations within a 24 month period, not including periods of suspension.

(c)        The city administrator shall provide at least ten days prior written notice to the licensee of the recommendation to suspend or revoke the license and the date of the hearing before the Board of City Commissioners, which must not be more than 30 days from the date of service of the notice, either by certified mail with a return receipt or by personal service upon the manager or owner of the licensed premises. Such notice shall inform the licensee of the right to a hearing before the Board of City Commissioners, the date of the scheduled hearing, and shall state the grounds for revocation and suspension. The Board of City Commissioners shall hold the hearing within 30 days of service upon the licensee and shall issue its decision within 15 days following the close of the hearing. Any person aggrieved by the decision of the Board shall have a right to appeal to the district court. The decision of the Board shall be stayed during the pendency of the appeal except as provided in Subsection (d) below.

(d)       Where the city building official or fire chief or their designees or the city health officer find that any condition exists upon the premises of a center or establishment which constitutes a threat of immediate serious injury or damage to persons or property, said official may immediately suspend any license issued under this Chapter pending a hearing in accordance with the provisions of subsection (c) above. The official shall issue notice setting forth the basis for the action and the facts that constitute a threat of immediate serious injury or damage to persons or property, and informing the licensee of the right to appeal the suspension to the Board of City Commissioners under the same appeal provisions set forth in Subsection (c) above, provided, however, that a suspension based on threat of immediate serious injury or damage shall not be stayed during the pendency of the appeal and the licensee may request an expedited hearing at the next scheduled regular meeting of the Board.

(e)        Any person aggrieved by the action of the Board in refusing to issue or renew any license issued under this Chapter shall have the right to appeal such action to the district court. Pending completion of the appeal process the City shall issue a temporary license, provided the aggrieved person files a notice of appeal with the City within 30 days of notice of the refusal to issue or renew.  (Ord. No. 1409 §1)

Section 3.060     Severability

The provisions in this chapter are severable, and if any of the provisions, sentences, clauses or paragraphs shall be held unconstitutional, contrary to statute, exceeding the authority of the city or otherwise illegal or inoperative by any court of competent jurisdiction, the decision of such court shall not affect or impair any of the other remaining provisions, unless the court should conclude that the partial invalidation would frustrate the intent of this chapter. . (Ord. No. 814, § 1; Ord. No. 1409 §1)

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