HomeMy WebLinkAboutORDINANCE NO. 07-02-05State of Georgia
County of Fulton
ORDINANCE 07-02-05
AN ORDINANCE ESTABLISHING LICENSING REQUIREMENTS
AND REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES WITHIN
THE CITY OF MILTON.
Section
— Preamble
1. Rationale and Findings.
2. Definitions.
3. Classifications.
4. License Required.
5. Issuance of License.
6. Fees.
7. Inspection.
8. Expiration and Renewal of License.
9. Suspension.
10. Revocation.
11. Hearing; License Denial, Suspension, Revocation; Appeal.
12. Transfer of License.
13. Hours of Operation.
14. Regulations Pertaining to Exhibition of Sexually Explicit Films on Premises.
15. Loitering and Exterior Lighting and Monitoring Requirements.
16. Penalties and Enforcement.
17. Applicability of Ordinance to Existing Businesses.
18. Prohibited Conduct.
19. Scienter Required to Prove Violation or Business Licensee Liability.
20. Failure of City to Meet Time Frame Not to Risk Applicant/Licensee Rights.
21. Location of Sexually Oriented Businesses.
22. Severability.
23. Conflicting Code Provisions Repealed.
24. Effective Date.
WHEREAS, sexually oriented businesses require special supervision from the
public safety agencies of the City in order to protect and preserve the health, safety, and
welfare of the patrons of such businesses as well as the citizens of the City; and
WHEREAS, the City Council finds that sexually oriented businesses, as a category
of establishments, are frequently used for unlawful sexual activities, including prostitution
and sexual liaisons of a casual nature; and
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,P, WHEREAS, there is convincing documented evidence that sexually oriented
businesses, as a category of establishments, have deleterious secondary effects and are often
associated with crime and adverse effects on surrounding properties; and
WHEREAS, the City Council desires to minimize and control these adverse effects
and thereby protect the health, safety, and welfare of the citizenry; protect the citizens from
crime; preserve the quality of life; preserve the character of surrounding neighborhoods and
deter the spread of urban blight; and
WHEREAS, the City recognizes its constitutional duty to interpret, construe, and
amend its laws to comply with constitutional requirements as they are announced; and
WHEREAS, with the passage of any Ordinance, the City and the City Council
accept as binding the applicability of general principles of criminal and civil law and
procedure and the rights and obligations under the United States and Georgia
Constitutions, Georgia Code, and the Georgia Rules of Civil and Criminal Procedure; and
WHEREAS, it is not the intent of this Ordinance to suppress any speech activities
protected by the U.S. Constitution or the Georgia Constitution, but to enact legislation to
further the content -neutral governmental interests of the City, to wit, the controlling of
secondary effects of sexually oriented businesses.
NOW, THEREFORE, the Council of the City of Milton hereby ordains that
the following Ordinance be enacted:
Section 1. Rationale and findings.
(a) Purpose. It is the purpose of this Ordinance to regulate sexually oriented
businesses in order to promote the health, safety, moral, and general welfare of the citizens
of the City, and to establish reasonable and uniform regulations to prevent the deleterious
secondary effects of sexually oriented businesses within the City. The provisions of this
Ordinance have neither the purpose nor effect of imposing a limitation or restriction on the
content or reasonable access to any communicative materials, including sexually oriented
materials. Similarly, it is neither the intent nor effect of this Ordinance to restrict or deny
access by adults to sexually oriented materials protected by the First Amendment, or to deny
access by the distributors and exhibitors of sexually oriented entertainment to their intended
market. Neither is it the intent nor effect of this Ordinance to condone or legitimize the
distribution of obscene material.
(b) Findings and Rationale. Based on evidence of the adverse secondary effects
of adult uses presented in hearings and in reports made available to the City Council, and on
findings, interpretations, and narrowing constructions incorporated in the cases of City of
Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda
Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap's A.M., 529 U.S. 277 (2000); City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres,
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427 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue,
409 U.S. 109 (1972); and
Artistic Entertainment, Inc. v. City of Warner Robins, 331 F.3d 1196 (11th Cir. 2003);
Artistic Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306 (11th Cir. 2000);
Williams v. Pryor, 240 F.3d 944 (11th Cir. 2001); Williams v. A.G. of Alabama, 378 F.3d
1232 (11th Cir. 2004); Gary v. City of Warner Robins, 311 F.3d 1334 (11th Cir. 2002);
Ward v. County of Orange, 217 F.3d 1350 (11th Cir. 2000); Boss Capital, Inc. v. City of
Casselberry, 187 F.3d 1251 (11th Cir. 1999); David Vincent, Inc. v. Broward County, 200
F.3d 1325 (11th Cir. 2000); Sammy's of Mobile, Ltd. v. City of Mobile, 140 F.3d 993 (11th
Cir. 1998); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999);
This That And The Other Gift and Tobacco, Inc. v. Cobb County, 285 F.3d 1319 (11th Cir.
2002); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Grand Faloon
Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982); International Food & Beverage
Systems v. Ft. Lauderdale, 794 F.2d 1520 (11th Cir. 1986); Gammoh v. City of La Habra,
395 F.3d 1114 (9th Cir. 2005); World Wide Video of Washington, Inc. v. City of Spokane,
368 F.3d 1186 (9th Cir. 2004); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir.
2003); and
Fairfax MK, Inc. v. City of Clarkston, 274 Ga. 520 (2001); Morrison v. State, 272 Ga. 129
(2000); Sewell v. Georgia, 233 S.E.2d 187 (Ga. 1977), dismissed for want of a substantial
federal question, 435 U.S. 982 (1978) (sexual devices); Flippen Alliance for Community
�.•. Empowerment, Inc. v. Brannan, 601 S.E.2d 106 (Ga. Ct. App. 2004); Oasis Goodtime
Emporium I, Inc. v. DeKalb County, 272 Ga. 887 (2000); Chamblee Visuals, LLC v. City of
Chamblee, 270 Ga. 33 (1998); World Famous Dudley's Food & Spirits, Inc. v. City of
College Park, 265 Ga. 618 (1995); Airport Bookstore, Inc. v. Jackson, 242 Ga. 214 (1978);
and based upon reports concerning secondary effects occurring in and around sexually
oriented businesses, including, but not limited to, Austin, Texas - 1986; Indianapolis,
Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997; Phoenix,
Arizona - 1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, California -
1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota -
1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997;
Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; New York, New York Times
Square - 1994; and the Report of the Attorney General's Working Group On The Regulation
Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota),
the City Council finds:
(1) Sexually oriented businesses, as a category of commercial uses, are
associated with a wide variety of adverse secondary effects including, but not limited to,
personal and property crimes, prostitution, potential spread of disease, lewdness, public
indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding
properties, urban blight, litter, and sexual assault and exploitation.
(2) Sexually oriented businesses should be separated from sensitive land
uses to minimize the impact of their secondary effects upon such uses, and should be
separated from other sexually oriented businesses, to minimize the secondary effects
associated with such uses and to prevent an unnecessary concentration of sexually oriented
businesses in one area.
(3) Each of the foregoing negative secondary effects constitutes a harm
which the City has a substantial government interest in preventing and/or abating. This
substantial government interest in preventing secondary effects, which is the City's rationale
for this Ordinance, exists independent of any comparative analysis between sexually
oriented and non -sexually oriented businesses. Additionally, the City's interest in regulating
sexually oriented businesses extends to preventing future secondary effects of either current
or future sexually oriented businesses that may locate in the City. The City finds that the
cases and documentation relied on in this Ordinance are reasonably believed to be relevant
to said secondary effects.
Section 2. Definitions.
For purposes of this Ordinance, the words and phrases defined in the sections hereunder
shall have the meanings therein respectively ascribed to them unless a different meaning
is clearly indicated by the context.
"Administrator" means the City Clerk.
"Adult Bookstore or Adult Video Store" means a commercial establishment which, as one
of its principal business activities, offers for sale or rental for any form of consideration
any one or more of the following: books, magazines, periodicals or other printed matter,
or photographs, films, motion pictures, video cassettes, compact discs, digital video discs,
slides, or other visual representations which are characterized by their emphasis upon the
display of "specified sexual activities" or "specified anatomical areas."
A "principal business activity" exists where the commercial establishment:
(a) at least 25% of the establishment's displayed merchandise consists of the
foregoing items, or
(b) at least 25% of the wholesale value of the establishment's displayed
merchandise consists of the foregoing items, or
(c) at least 25% of the retail value of the establishment's displayed merchandise
consists of the foregoing items, or
(d) at least 25% of the establishment's revenues derive from the sale or rental, for
any form of consideration of the foregoing items, or
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MOM (e) the establishment devotes at least 25% of its interior business space or, if less
than 25%, devotes at least five hundred square feet (500 sq. ft.) of its interior business
mom space, to the display, sale and/or rental of the foregoing items (aisles and walkways used
to access said items shall be included in "interior business space"; or
(f) maintains an "adult arcade," which means any place to which the public is
permitted or invited wherein coin-operated or slug -operated or electronically, electrically,
or mechanically controlled still or motion picture machines, projectors, or other image -
producing devices are regularly maintained to show images to five or fewer persons per
machine at any one time, and where the images so displayed are characterized by their
emphasis upon matter exhibiting "specified sexual activities" or specified "anatomical
areas."
"Adult Cabaret" means a nightclub, bar, juice bar, restaurant, bottle club, or other
commercial establishment, whether or not alcoholic beverages are served, which
regularly features persons who appear semi-nude.
"Adult Motion Picture Theater" means a commercial establishment where films, motion
pictures, videocassettes, slides, or similar photographic reproductions which are
characterized by their emphasis upon the display of "specified sexual activities" or
"specified anatomical areas" are regularly shown to more than five persons for any form
of consideration.
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"Characterized by" means describing the essential character or quality of an item. As
low applied in this Ordinance, no business shall be classified as a sexually oriented business by
virtue of showing, selling, or renting materials rated NC -17 or R by the Motion Picture
Association of America.
"Ci)" means the City of Milton, Georgia.
"Employ, Employee, and Employment" describe and pertain to any person who performs
any service on the premises of a sexually oriented business, on a full time, part time, or
contract basis, whether or not the person is denominated an employee, independent
contractor, agent, or otherwise. Employee does not include a person exclusively on the
premises for repair or maintenance of the premises or for the delivery of goods to the
premises.
"Establish or Establishment" shall mean and include any of the following:
(a) The opening or commencement of any sexually oriented business as a new
business;
(b) The conversion of an existing business, whether or not a sexually oriented
business, to any sexually oriented business; or
worm (c) The addition of any sexually oriented business to any other existing
sexually oriented business.
"Hearing Officer" means an attorney, not otherwise employed by the City, who is
licensed to practice law in Georgia, and retained to serve as an independent tribunal to
conduct hearings under this Ordinance.
"Influential Interest" means any of the following: (1) the actual power to operate the
sexually oriented business or control the operation, management or policies of the
sexually oriented business or legal entity which operates the sexually oriented business,
or (2) holding an office (e.g., president, vice president, secretary, treasurer, managing
member, managing director, etc.) in a legal entity which operates the sexually oriented
business.
"Licensee" shall mean a person in whose name a license to operate a sexually oriented
business has been issued, as well as the individual or individuals listed as an applicant on
the application for a sexually oriented business license. In the case of an "employee," it
shall mean the person in whose name the sexually oriented business employee license has
been issued.
"Nudity or a State of Nudity" means the showing of the human male or female genitals,
pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or
Wn" the showing of the female breast with less than a fully opaque covering of any part of the
nipple and areola.
"Operate or Cause to Operate" shall mean to cause to function or to put or keep in a state
of doing business. "Operator" means any person on the premises of a sexually oriented
business who causes the business to function or who puts or keeps in operation the
business or who is authorized to manage the business or exercise overall operational
control of the business premises. A person may be found to be operating or causing to be
operated a sexually oriented business whether or not that person is an owner, part owner,
or licensee of the business.
"Person" shall mean individual, proprietorship, partnership, corporation, association, or
other legal entity.
"Premises" means the real property upon which the sexually oriented business is located,
and all appurtenances thereto and buildings thereon, including, but not limited to, the
sexually oriented business, the grounds, private walkways, and parking lots and/or
parking garages adjacent thereto, under the ownership, control, or supervision of the
licensee, as described in the application for a sexually oriented business license.
"Regularly" means and refers to the consistent and repeated doing of the act so described.
"Semi -Nude or State of Semi -Nudity" means the showing of the female breast below a
horizontal line across the top of the areola and extending across the width of the breast at
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that point, or the showing of the male or female buttocks. This definition shall include
the lower portion of the human female breast, but shall not include any portion of the
am cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard,
or similar wearing apparel provided the areola is not exposed in whole or in part.
"Semi -Nude Model Studio" means a place where persons regularly appear in a state of
semi -nudity for money or any form of consideration in order to be observed, sketched,
drawn, painted, sculptured, photographed, or similarly depicted by other persons.
This definition does not apply to any place where persons appearing in a state of semi -
nudity did so in a modeling class operated:
(a) By a college, junior college, or university supported entirely or partly by
taxation;
(b) By a private college or university which maintains and operates
educational programs in which credits are transferable to a college, junior college, or
university supported entirely or partly by taxation; or
(c) In a structure:
(1) Which has no sign visible from the exterior of the structure and no
"am other advertising that indicates a semi-nude person is available for viewing; and
(2) Where, in order to participate in a class a student must enroll at
least three days in advance of the class.
"Sexual Device" means any three (3) dimensional object designed and marketed for
stimulation of the male or female human genitals, anus, female breast, or for
sadomasochistic use or abuse of oneself or others and shall include devices such as
dildos, vibrators, penis pumps, and physical representations of the human genital organs.
Nothing in this definition shall be construed to include devices primarily intended for
protection against sexually transmitted diseases or for preventing pregnancy.
"Sexual Device Shop" means a commercial establishment that regularly features sexual
devices. Nothing in this definition shall be construed to include any pharmacy, drug
store, medical clinic, or any establishment primarily dedicated to providing medical or
healthcare products or services, nor shall this definition be construed to include
commercial establishments which do not restrict access to their premises by reason of
age.
"Sexual Encounter Center" shall mean a business or commercial enterprise that, as one of
its principal business purposes, purports to offer for any form of consideration, physical
,yam contact in the form of wrestling or tumbling between persons of the opposite sex when
one or more of the persons is semi-nude.
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"Sexually Oriented Business" means an "adult bookstore or adult video store," an "adult
cabaret," an "adult motion picture theater," a "semi-nude model studio," a "sexual device
rrr shop," or a "sexual encounter center."
"Specified Anatomical Areas" means and includes:
(a) Less than completely and opaquely covered: human genitals, pubic region;
buttock; and female breast below a point immediately above the top of the areola; and
(b) Human male genitals in a discernibly turgid state, even if completely and
opaquely covered.
"Specified Criminal Activity" means:
(a) any of the following specified offenses for which less than five years elapsed
since the date of conviction or the date of release from confinement for the conviction,
whichever is the later date:
(1) rape, child molestation, sexual assault, sexual battery, aggravated
sexual assault, aggravated sexual battery, or public indecency;
(2) prostitution, keeping a place of prostitution, pimping, or pandering;
(3) obscenity, disseminating or displaying matter harmful to a minor, or
�• use of child in sexual performance;
(4) any offense related to any sexually -oriented business, including
controlled substance offenses, tax violations, racketeering, crimes involving sex, crimes
involving prostitution, or crimes involving obscenity; or
(b) any attempt, solicitation, or conspiracy to commit one of the foregoing
offenses.
"Specified Sexual Activity" means any of the following:
(a) intercourse, oral copulation, masturbation or sodomy; or
(b) excretory functions as a part of or in connection with any of the activities
described in (a) above.
"Substantial" means at least twenty five percent (25%) of the item(s) so modified.
"Transfer of Ownership or Control" of a sexually oriented business shall mean any of the
following:
i... (a) The sale, lease, or sublease of the business;
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(b) The transfer of securities which constitute an influential interest in the
business, whether by sale, exchange, or similar means; or
(c) The establishment of a trust, gift, or other similar legal device which
transfers the ownership or control of the business, except for transfer by bequest or other
operation of law upon the death of the person possessing the ownership or control.
"Viewing Room" shall mean the room, booth, or area where a patron of a sexually
oriented business would ordinarily be positioned while watching a film, videocassette,
digital video disc, or other video reproduction.
Section 3. Classification.
The classifications for sexually oriented businesses shall be as follows:
(a) Adult bookstore or adult video store;
(b) Adult cabaret;
(c) Adult motion picture theater;
(d) Semi-nude model studio;
(e) Sexual device shop;
(f) Sexual encounter center.
Section 4. License required.
(a) Business License. It shall be unlawful for any person to operate a sexually
oriented business in the City without a valid sexually oriented business license.
(b) Employee License. It shall be unlawful for any person to be an "employee," as
defined in this Ordinance, of a sexually oriented business in the City without a valid
sexually oriented business employee license, except that a person who is a licensee under
a valid sexually oriented business license shall not be required to also obtain a sexually
oriented business employee license.
(c) Application. An applicant for a sexually oriented business license or a sexually
oriented business employee license shall file in person at the office of the City Clerk a
completed application made on a form provided by the City Clerk. A sexually oriented
business may designate an individual with an influential interest in the business to file its
application for a sexually oriented business license in person on behalf of the business.
The application shall be signed as required by subsection (d) herein and shall be
notarized. An application shall be considered complete when it contains, for each person
required to sign the application, the information and/or items required in this subsection
(c), accompanied by the appropriate licensing fee:
(1) The applicant's full legal name and any other names used by the applicant
in the preceding five (5) years.
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(2) Current business address or another mailing address for the applicant.
(3) Written proof of age, in the form of a driver's license or a copy of a birth
certificate accompanied by a picture identification document issued by a governmental
agency.
(4) If the application is for a sexually oriented business license, the business
name, location, legal description, mailing address and phone number of the sexually
oriented business.
(5) If the application is for a sexually oriented business license, the name and
business address of the statutory agent or other agent authorized to receive service of
process.
(6) A statement of whether an applicant has been convicted of or has pled
guilty or nolo contendere to a specified criminal activity as defined in this Ordinance, and
if so, each specified criminal activity involved, including the date, place, and jurisdiction
of each as well as the dates of conviction and release from confinement, where
applicable.
(7) A statement of whether any sexually oriented business in which an
"ON applicant has had an influential interest, has, in the previous five (5) years (and at a time
during which the applicant had the influential interest):
(i) been declared by a court of law to be a nuisance; or
(ii) been subject to a court order of closure or padlocking.
(8) An application for a sexually oriented business license shall be
accompanied by a legal description of the property where the business is located and 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 shall be drawn to a designated scale or drawn with marked
dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches.
Applicants who are required to comply with the stage, booth, and/or room configuration
requirements of this Ordinance shall submit a diagram indicating that the setup and
configuration of the premises meets the requirements of the applicable regulations.
The information provided pursuant to this subsection (c) shall be supplemented in writing
by certified mail, return receipt requested, to the City Clerk within ten (10) working days
of a change of circumstances which would render the information originally submitted
false or incomplete.
(d) Signature. A person who seeks a sexually oriented business employee license
under this section shall sign the application for a license. If a person who seeks a
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opme sexually oriented business license under this section is an individual, he shall sign the
application for a license as applicant. If a person who seeks a sexually oriented business
license is other than an individual, each person with an influential interest in the sexually
oriented business or in a legal entity that controls the sexually oriented business shall sign
the application for a license as applicant. Each applicant must be qualified under this
Ordinance and each applicant shall be considered a licensee if a license is granted.
(e) The information provided by an applicant in connection with an application for a
license under this Ordinance shall be maintained by the office of the City Clerk on a
confidential basis, and such information may be disclosed only as may be required, and
only to the extent required, by court order.
Section 5. Issuance of license.
(a) Business License. Upon the filing of a completed application for a sexually
oriented business license, the City Clerk shall immediately issue a Temporary License to
the applicant if the completed application is from a preexisting sexually oriented business
that is lawfully operating in the City and the completed application, on its face, indicates
that the applicant is entitled to an annual sexually oriented business license. The
Temporary License shall expire upon the final decision of the City to deny or grant an
annual license. Within twenty (20) days of the filing of a completed sexually oriented
business license application, the City Clerk shall either issue a license to the applicant or
issue a written notice of intent to deny a license to the applicant. The City Clerk shall
issue a license unless:
(1) An applicant is less than eighteen (18) years of age.
(2) An applicant has failed to provide information required by this Ordinance
for issuance of a license or has falsely answered a question or request for information on
the application form.
(3) The license application fee required by this Ordinance has not been paid.
(4) The sexually oriented business is not in compliance with the interior
configuration requirements of this Ordinance or is not in compliance with locational
requirements of this Ordinance or the locational requirements of any other part of the
Milton Code or Georgia law.
(5) Any sexually oriented business in which the applicant has had an
influential interest, has, in the previous five (5) years (and at a time during which the
applicant had the influential interest):
(i) been declared by a court of law to be a nuisance; or
(ii) been subject to an order of closure or padlocking.
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moo, (6) An applicant has been convicted of or pled guilty or nolo contendere to a
specified criminal activity, as defined in this Ordinance.
No" (b) Employee License. Upon the filing of a completed application for a sexually
oriented business employee license, the City Clerk shall immediately issue a Temporary
License to the applicant if the applicant seeks licensure to work in a licensed sexually
oriented business and the completed application, on its face, indicates that the applicant is
entitled to an annual sexually oriented business employee license. The Temporary
License shall expire upon the final decision of the City to deny or grant an annual license.
Within twenty (20) days of the filing of a completed sexually oriented business employee
license application, the City Clerk shall either issue a license to the applicant or issue a
written notice of intent to deny a license to the applicant. The City Clerk shall issue a
license unless:
(1) The applicant is less than eighteen (18) years of age.
(2) The applicant has failed to provide information as required by this
Ordinance for issuance of a license or has falsely answered a question or request for
information on the application form.
(3) The license application fee required by this Ordinance has not been paid.
(4) Any sexually oriented business in which the applicant has had an
influential interest, has, in the previous five (5) years (and at a time during which the
MOM applicant had the influential interest):
(i) been declared by a court of law to be a nuisance; or
(ii) been subject to an order of closure or padlocking.
(5) The applicant has been convicted of or pled guilty or nolo contendere to a
specified criminal activity, as defined in this Ordinance.
(c) The license, if granted, shall state on its face the name of the person or persons to
whom it is granted, the number of the license issued to the licensee(s), the expiration
date, and, if the license is for a sexually oriented business, the address of the sexually
oriented business. The sexually oriented business license shall be posted in a conspicuous
place at or near the entrance to the sexually oriented business so that it may be read at any
time that the business is occupied by patrons or is open to the public. A sexually oriented
business employee shall keep the employee's license on his or her person or on the
premises where the licensee is then working or performing.
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N,,,," Section 6. Fees.
(a) The initial license and annual renewal fees for sexually oriented business licenses
and sexually oriented business employee licenses shall be as follows: one hundred
dollars ($100) for the initial fee for a sexually oriented business license and fifty dollars
($50) for annual renewal; fifty dollars ($50) for the initial sexually oriented business
employee license and twenty-five dollars ($25) for annual renewal.
Section 7. Inspection.
Sexually oriented businesses and sexually oriented business employees shall permit the
City Clerk and his or her agents to inspect, from time to time on an occasional basis, the
portions of the sexually oriented business premises where patrons are permitted, for the
purpose of ensuring compliance with the specific regulations of this Ordinance, during
those times when the sexually oriented business is occupied by patrons or is open to the
public. This section shall be narrowly construed by the City to authorize reasonable
inspections of the licensed premises pursuant to this Ordinance, but not to authorize a
harassing or excessive pattern of inspections.
Section 8. Expiration and renewal of license.
(a) Each license shall remain valid for a period of one calendar year from the date of
OMM issuance unless otherwise suspended or revoked. Such license may be renewed only by
making application and payment of a fee as provided in this Ordinance.
(b) Application for renewal of an annual license should be made at least ninety (90)
days before the expiration date of the current annual license, and when made less than
ninety (90) days before the expiration date, the expiration of the current license will not
be affected.
Section 9. Suspension.
(a) The City Clerk shall issue a written notice of intent to suspend a sexually oriented
business license for a period not to exceed thirty (30) days if the sexually oriented
business licensee has knowingly violated this Ordinance or has knowingly allowed an
employee to violate this Ordinance.
(b) The City Clerk shall issue a written notice of intent to suspend a sexually oriented
business employee license if the employee has knowingly violated this Ordinance.
Section 10. Revocation.
(a) The City Clerk shall issue a written notice of intent to revoke a sexually oriented
n,," business license or a sexually oriented business employee license, as applicable, if the
licensee knowingly violates this Ordinance or has knowingly allowed an employee to
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violate this Ordinance and a suspension of the licensee's license has become effective
within the previous twelve-month (12 -mo.) period.
(b) The City Clerk shall issue a written notice of intent to revoke a sexually oriented
business license or a sexually oriented business employee license, as applicable, if:
(1) The licensee has knowingly given false information in the application for
the sexually oriented business license or the sexually oriented business employee license.
(2) The licensee has knowingly or recklessly engaged in or allowed
possession, use, or sale of controlled substances on the premises of the sexually oriented
business;
(3) The licensee has knowingly or recklessly engaged in or allowed
prostitution on the premises of the sexually oriented business;
(4) The licensee knowingly or recklessly operated the sexually oriented
business during a period of time when the license was finally suspended or revoked; or
(5) The licensee has knowingly or recklessly engaged in or allowed any
specified sexual activity to occur in or on the premises of the sexually oriented business.
m"" (c) The fact that any relevant conviction is being appealed shall have no effect on the
revocation of the license, provided that, if any conviction which serves as a basis of a
+ license revocation is overturned or reversed on appeal, that conviction shall be treated as
null and of no effect for revocation purposes.
(d) When, after the notice and hearing procedure described in this Ordinance, the City
Council revokes a license, the revocation shall continue for one (1) year and the licensee
shall not be issued a sexually oriented business license or sexually oriented business
employee license for one (1) year from the date revocation becomes effective.
Section 11. Hearing; denial, revocation, and suspension; appeal.
(a) When the City Clerk issues a written notice of intent to deny, suspend, or revoke a
license, the City Clerk shall immediately send such notice, which shall include the
specific grounds under this Ordinance for such action, to the applicant or licensee
(respondent) by personal delivery or certified mail. The notice shall be directed to the
most current business address or other mailing address on file with the City Clerk for the
respondent. The notice shall specify a date, not less than ten (10) days nor more than
twenty (20) days after the date the notice is issued, on which the Hearing Officer shall
conduct a hearing on the City Clerk's written notice of intent to deny, suspend, or revoke
the license.
At the hearing, the respondent shall have the opportunity to present all of respondent's
am" arguments and to be represented by counsel, present evidence and witnesses on his or her
14
Now behalf, and cross-examine any of the City Clerk's witnesses. The City Clerk shall also be
represented by counsel, and shall bear the burden of proving the grounds for denying,
wow suspending, or revoking the license. The hearing shall take no longer than two (2) days,
unless extended at the request of the respondent to meet the requirements of due process
and proper administration of justice. The Hearing Officer shall issue a written decision,
including specific reasons for the decision pursuant to this Ordinance, to the respondent
within five (5) days after the hearing.
If the decision is to deny, suspend, or revoke the license, the decision shall not become
effective until the tenth (10th) day after it is rendered, and the decision shall include a
statement advising the respondent of the right to appeal such decision to a court of
competent jurisdiction. If the Hearing Officer's decision finds that no grounds exist for
denial, suspension, or revocation of the license, the Hearing Officer shall,
contemporaneously with the issuance of the decision, order the City Clerk to immediately
withdraw the intent to deny, suspend, or revoke the license and to notify the respondent
in writing by certified mail of such action. If the respondent is not yet licensed, the City
Clerk shall contemporaneously therewith issue the license to the applicant.
(b) Any appeal to the decision of the Hearing Officer shall be to the Fulton
Superior court by writ of certiorari and filed within thirty (30) days of such decision. The
City shall consent to expedited briefing and/or disposition of the action, shall comply
with any expedited schedule set by the court, and shall facilitate prompt judicial review
RMN of the proceedings. The following shall apply to any sexually oriented business that is
lawfully operating as a sexually oriented business, or any sexually oriented business
Now employee that is lawfully employed as a sexually oriented business employee, on the date
on which the completed business or employee application, as applicable, is filed with the
City Clerk: Upon the filing of any court action to appeal the City's denial, suspension, or
revocation decision, the City Clerk shall immediately issue the respondent a Provisional
License. The Provisional License shall allow the respondent to continue operation of the
sexually oriented business or to continue employment as a sexually oriented business
employee and will expire upon the court's entry of a judgment on the respondent's
appeal. The Provisional License shall not be construed to provide the applicant with any
substantive right, entitlement, or claim of estoppel beyond the ability to operate until the
court enters judgment on the respondent's appeal.
Section 12. Transfer of license.
A licensee shall not transfer his or her license to another, nor shall a licensee operate a
sexually oriented business under the authority of a license at any place other than the
address designated in the sexually oriented business license application.
Section 13. Hours of operation.
No sexually oriented business shall be or remain open for business between 12:00
midnight and 6:00 a.m. on any day.
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Section 14. Regulations pertaining to exhibition of sexually explicit films or videos.
(a) A person who operates or causes to be operated a sexually oriented business
which exhibits in a booth or viewing room on the premises, through any mechanical or
electronic image -producing device, a film, video cassette, digital video disc, or other
video reproduction characterized by an emphasis on the display of specified sexual
activities or specified anatomical areas shall comply with the following requirements.
(1) Each application for a sexually oriented business license shall contain a
diagram of the premises showing the location of all operator's stations, booths or viewing
rooms, overhead lighting fixtures, and restrooms, and shall designate all portions of the
premises in which patrons will not be permitted. Restrooms shall not contain equipment
for displaying films, video cassettes, digital video discs, or other video reproductions.
The diagram shall also designate the place at which the license will be conspicuously
posted, if granted. A professionally prepared diagram in the nature of an engineer's or
architect's blueprint shall not be required; however, each diagram shall be oriented to the
north or to some designated street or object and shall be drawn to a designated scale or
with marked dimensions sufficient to show the various internal dimensions of all areas of
the interior of the premises to an accuracy of plus or minus six inches. The City Clerk
may waive the foregoing diagram for renewal applications if the applicant adopts a
diagram that was previously submitted and certifies that the configuration of the premises
has not been altered since it was prepared.
(2) It shall be the duty of the operator, and of any employees present on the
.M. premises, to ensure that no patron is permitted access to any area of the premises which
has been designated as an area in which patrons will not be permitted.
(3) The interior premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are permitted access at an
illumination of not less than five (5.0) foot candles as measured at the floor level. It shall
be the duty of the operator, and of any employees present on the premises, to ensure that
the illumination described above is maintained at all times that the premises is occupied
by patrons or open for business.
(4) It shall be the duty of the operator, and of any employees present on the
premises, to ensure that no sexual activity occurs in or on the licensed premises.
(5) It shall be the duty of the operator to post conspicuous signs in well -
lighted entry areas of the business stating all of the following:
(i)
limited to one person.
(ii)
MPM (iii)
(iv)
Now (v)
That the occupancy of viewing rooms less than 150 square feet is
That sexual activity on the premises is prohibited.
That the making of openings between viewing rooms is prohibited.
That violators will be required to leave the premises.
That violations of these regulations are unlawful.
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(6) It shall be the duty of the operator to enforce the regulations articulated in
(5)(i) though (iv) above.
(7) The interior of the premises shall be configured in such a manner that
there is an unobstructed view from a operator's station of every area of the premises,
including the interior of each viewing room but excluding restrooms, to which any patron
is permitted access for any purpose. An operator's station shall not exceed thirty-two
(32) square feet of floor area. If the premises has two (2) or more operator's stations
designated, then the interior of the premises shall be configured in such a manner that
there is an unobstructed view of each area of the premises to which any patron is
permitted access for any purpose from at least one of the operator's stations. The view
required in this paragraph must be by direct line of sight from the operator's station. It is
the duty of the operator to ensure that at least one employee is on duty and situated in
each operator's station at all times that any patron is on the premises. It shall be the duty
of the operator, and it shall also be the duty of any employees present on the premises, to
ensure that the view area specified in this paragraph remains unobstructed by any doors,
curtains, walls, merchandise, display racks or other materials or enclosures at all times
that any patron is present on the premises.
(b) It shall be unlawful for a person having a duty under this section to knowingly fail
to fulfill that duty.
Section 15. Loitering, exterior lighting, visibility, and monitoring requirements.
(a) It shall be the duty of the operator of a sexually oriented business to: (a) post
conspicuous signs stating that no loitering is permitted on such property; (b) designate
one or more employees to monitor the activities of persons on such property by visually
inspecting such property at least once every ninety (90) minutes or inspecting such
property by use of video cameras and monitors; and (c) provide lighting of the exterior
premises to provide for visual inspection or video monitoring to prohibit loitering. If
used, video cameras and monitors shall operate continuously at all times that the premises
are open for business. The monitors shall be installed within an operator's station.
(b) It shall be unlawful for a person having a duty under this section to knowingly fail
to fulfill that duty.
(c) No sexually oriented business shall erect a fence, wall, or other barrier that
prevents any portion of the parking lot(s) for the establishment from being visible from a
public right of way.
Section 16. Penalties and enforcement.
(a) A person who knowingly violates, disobeys, omits, neglects, or refuses to comply
with or resists the enforcement of any of the provisions of this Ordinance shall, upon
conviction, be punished by fines not to exceed one thousand dollars ($1,000.00) per
17
violation, or by imprisonment for a period not to exceed six (6) months, or by both such
fine and imprisonment. Each day a violation is committed, or permitted to continue, shall
constitute a separate offense and shall be punished as such.
(b) The City's legal counsel is hereby authorized to institute civil proceedings
necessary for the enforcement of this Ordinance to prosecute, restrain, or correct
violations hereof. Such proceedings, including injunction, shall be brought in the name
of the City, provided, however, that nothing in this section and no action taken hereunder,
shall be held to exclude such criminal or administrative proceedings as may be authorized
by other provisions of this Ordinance, or any of the laws in force in the City or to exempt
anyone violating this code or any part of the said laws from any penalty which may be
incurred.
Section 17. Applicability of Ordinance to existing businesses.
All existing sexually oriented businesses and sexually oriented business employees are
hereby granted a De Facto Temporary License to continue operation or employment for a
period of ninety (90) days following the effective date of this Ordinance. By the end of
said ninety (90) days, all sexually oriented businesses and sexually oriented business
employees must conform to and abide by the requirements of this Ordinance.
Section 18. Prohibited conduct.
no"
It is unlawful for a sexually oriented business licensee to knowingly violate the following
W" regulations or to knowingly allow an employee or any other person to violate the
following regulations.
(a) It shall be a violation of this Ordinance for a patron, employee, or any other
person to knowingly or intentionally, in a sexually oriented business, appear in a state of
nudity, regardless of whether such public nudity is expressive in nature.
(b) It shall be a violation of this Ordinance for a person to knowingly or intentionally,
in a sexually oriented business, appear in a semi-nude condition unless the person is an
employee who, while semi-nude, remains at least six (6) feet from any patron or customer
and on a stage at least eighteen (18) inches from the floor in a room of at least one
thousand (1,000) square feet.
(c) It shall be a violation of this Ordinance for any employee who regularly appears
semi-nude in a sexually oriented business to knowingly or intentionally touch a customer
or the clothing of a customer on the premises of a sexually oriented business.
(d) It shall be a violation of this Ordinance for any person to sell, use, or consume
alcoholic beverages on the premises of a sexually oriented business.
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(e) It shall be a violation of this Ordinance for any person to knowingly allow a
t person under the age of eighteen (18) years on the premises of a sexually oriented
business.
Now
A sign in a form to be prescribed by the City Clerk, and summarizing the provisions of
subsections (a), (b), (c), (d), and (e), shall be posted near the entrance of the sexually
oriented business in such a manner as to be clearly visible to patrons upon entry.
Section 19. Scienter required to prove violation or business licensee liability.
This Ordinance does not impose strict liability. Unless a culpable mental state is
otherwise specified herein, a showing of a knowing or reckless mental state is necessary
to establish a violation of a provision of this Ordinance. Notwithstanding anything to the
contrary, for the purposes of this Ordinance, an act by an employee that constitutes
grounds for suspension or revocation of that employee's license shall be imputed to the
sexually oriented business licensee for purposes of finding a violation of this Ordinance,
or for purposes of license denial, suspension, or revocation, only if an officer, director, or
general partner, or a person who managed, supervised, or controlled the operation of the
business premises, knowingly or recklessly allowed such act to occur on the premises. It
shall be a defense to liability that the person to whom liability is imputed was powerless
to prevent the act.
Section 20. Failure of City to meet deadline not to risk applicant/licensee rights.
so" In the event that a City official is required to act or to do a thing pursuant to this
Ordinance within a prescribed time, and fails to act or to do such thing within the time
prescribed, said failure shall not prevent the exercise of constitutional rights of an
applicant or licensee. If the act required of the City official under this Ordinance, and not
completed in the time prescribed, includes approval of condition(s) necessary for
approval by the City of an applicant or licensee's application for sexually oriented
business license or a sexually oriented business employee's license (including a renewal),
the license shall be deemed granted and the business or employee allowed to commence
operations or employment the day after the deadline for the City's action has passed.
Section 21. Location of sexually oriented businesses.
(a) It shall be unlawful to establish, operate, or cause to be operated a sexually
oriented business in the City of Milton, unless said sexually oriented business is at least:
(1) 1000 feet from any parcel occupied by another sexually oriented business
or by a business licensed by the State of Georgia to sell alcohol on the premises; and
(2) 1000 feet from any parcel occupied by a house of worship, public or
private elementary or secondary school, public park, or any residence.
[LI
7!!
(b) Measurement. For the purpose of this section, measurements shall be made in a
straight line in all directions without regard to intervening structures or objects, from the
closest point on a boundary line of the sexually oriented business parcel to the closest
point on a boundary line of any parcel containing a house of worship, public or private
elementary or secondary school, public park, residence, another sexually oriented
business, or a business licensed by the State of Georgia to sell alcohol on the premises.
(c) Preexisting Sexually Oriented Businesses. Notwithstanding anything to the
contrary in the Milton Code, a nonconforming sexually oriented business, lawfully
existing in all respects under law prior to the effective date of this Ordinance, may
continue to operate for one (1) year following that date in order to make a reasonable
recoupment of its investment in its current location. At the conclusion of said one (1)
year, the use will no longer be recognized as a lawful nonconforming use, except that a
nonconforming sexually oriented business may obtain an extension of the original one-
year period upon a showing of financial hardship. An application for an extension based
upon financial hardship ("hardship exception") shall be made at least sixty (60) days
before the conclusion of the aforementioned one-year (1 -yr.) period.
(d) Procedure for Seeking Hardship Extension. An application for a hardship
extension shall be filed in writing with the City Clerk, and shall include evidence of
purchase and improvement costs, income earned and lost, depreciation, appraised value
of the property and/or leasehold interests, and costs of relocation. Within ten (10) days
after receiving the application, the City Clerk shall schedule a hearing on the application
before the Hearing Officer, which hearing shall be conducted within thirty (30) days after
the City Clerk's receipt of the application. Notice of the time and place of such hearing
shall be provided to the applicant via certified mail at least ten (10) days before the
hearing. At the hearing, all parties shall have the right to offer testimony, documentary
and tangible evidence bearing on the issues; may be represented by counsel, and shall
have the right to confront and cross-examine witnesses.
The Hearing Officer shall issue a written decision within ten (10) days after the hearing
on the application for a hardship extension. The hardship extension shall be granted upon
a showing of financial hardship. Such a showing shall be established if the hearing
officer makes the following findings:
(1) The applicant has, prior to the effective date of this ordinance, made a
substantial investment, including but not limited to lease obligations incurred in an arms -
length transaction, in the property or structure on or in which the nonconforming use is
conducted;
(2) The applicant will be unable to recoup said investment as of the date
established for termination of the use; and
(3) The applicant has made good faith efforts to recoup the investment prior to
the conclusion of the one-year (1 -yr.) period.
W
Any extension granted under the provisions of this Section 21 shall be for a
reasonable period of time commensurate with the investment involved.
Section 22. Severability.
This Ordinance and each section and provision of said Ordinance hereunder, are hereby
declared to be independent divisions and subdivisions and, not withstanding any other
evidence of legislative intent, it is hereby declared to be the controlling legislative intent
that if any provisions of said Ordinance, or the application thereof to any person or
circumstance is held to be invalid, the remaining sections or provisions and the
application of such sections and provisions to any person or circumstances other than
those to which it is held invalid, shall not be affected thereby, and it is hereby declared
that such sections and provisions would have been passed independently of such section
or provision so known to be invalid. Should any procedural aspect of this Ordinance be
invalidated, such invalidation shall not affect the enforceability of the substantive aspects
of this Ordinance.
Section 23. Conflicting code provisions repealed.
Any provision(s) in the Milton code of ordinances specifically in conflict with any
provision in this Ordinance is hereby deemed inoperative and repealed.
Section 24. Effective date.
This Ordinance shall take effect immediately upon passage.
ATTEST:
)ewahe R. Marchiafava, City Cle
(City Seal)
Approved:
F
Joe Lock ayor
21