6.49 - Sexually Oriented Business LicensingSection 6.49: Sexually Oriented Business
Licensing
Subdivision 1. Purpose
The City Council finds licensure necessary for all Sexually Oriented Businesses to
ensure the safety, health, and welfare of the community and to ensure the careful
compliance with land use regulations set forth in Section 11.50 of the Zoning Code.
Licensure is required due to the nature and content of the products and services
offered and sold within Sexually Oriented Businesses, and due to any potential
negative effects brought to a community by a Sexually Oriented Business as
outlined in Subdivision 1 of Section 11.50 of the Zoning Code.
Subdivision 2. Definitions
For purposes of this Section, these terms shall be defined as follows:
A. Accessory Sexually Oriented Sales: Sales accounting for less than five
percent (5%) of the floor area, up to a maximum of fifty (50) square feet, of
an otherwise permitted business (not including storerooms, stock areas,
bathrooms, basements or any portion of the business not open to the public)
devoted to materials or persons depicting, exposing, describing, discussing or
relating to Specified Sexual Activities or Specified Anatomical Areas, and is
available for barter, rental, or sale for off the premises use only. Accessory
Sexually Oriented Sales do not include the sale of instruments, devices or
paraphernalia which are used or designed for use in connection with
Specified Sexual Activities. In order to qualify, Accessory Sexually Oriented
Sales shall at all times be out of view by any persons under the age of
eighteen (18), and hereunder, they shall be restricted from and prohibit
access to persons under age eighteen (18) by physical separation, except for
sales of print media, which shall be displayed with a completely opaque cover
excluding the media's title, and shall be kept a minimum of five (5) feet off
the floor. Any business with accessory sexually oriented sales not meeting
the requirements of this definition shall be considered a Sexually Oriented
Business, subject to all requirements for such businesses.
B. Licensee: Any person, sole proprietorship, partnership, or corporation
holding a license to operate a sexually oriented business.
C. Licensed Premises: Any location for which a license has been granted by
the Council for the operation of a sexually oriented business. Such a location
must be within those portions of the City approved for sexually oriented
business in Section 11.50 of the Code.
D. Premises: Any business location not approved for the operation of a
sexually oriented business. Such designation shall not preclude the future
operation of a sexually oriented business.
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E. Sexually Oriented Business: An inclusive term describing collectively the
following retail, entertainment, or service oriented businesses:
1. On-site entertainment provided by live entertainers characterized by an
emphasis on Specified Anatomical Areas or Specified Sexual Activities,
commonly known as, but not limited to, an Adult Cabaret, Adult
Entertainment Facility, Strip Club, Show Girls, Adult Modeling Studio, or a
Lingerie Studio. Such characteristics may be determined by advertising
patterns or actual performances.
2. Adult motion picture theatres with capacity greater than fifty (50)
persons, emphasizing or predominately showing movies depicting
Specified Anatomical Areas or Specified Sexual Activities as its regular
and substantial course of conduct.
3. Adult media stores wherein six percent (6%) or more of its gross public
floor area or stock -in -trade consists of media, including but not limited to,
magazines, books, DVDs, videotapes, movies, slides, or CD-ROMs that are
characterized by their emphasis on Specified Sexual Activities or Specified
Anatomical Areas.
4. Adult Video Arcades (Mini -Motion Picture Theater) that have capacity for
fifty (50) or fewer persons and emphasize or predominately show movies
or clips depicting Specified Anatomical Areas or Specified Sexual
Activities, often in semi -private viewing booths, as its regular and
substantial course of conduct.
5. Sex Shops that are establishments offering goods for sale or rent and
meet one of the following criteria:
a. More than five percent (5%) of a business's stock in trade or gross
public floor area consists of media characterized by emphasis on
Specified Sexual Activities or Specified Anatomical Areas; or
b. Sales of lingerie marketed or presented in a context to suggest use for
sadomasochistic practices; or
c. Sales of leather goods marketed or presented in a context to suggest
their use for sadomasochistic practices; or
d. Sales of instruments, devices, paraphernalia or general retail products
either designed as complete or partial representations of human
genital organs or female breasts, or designed or marketed primarily for
use to stimulate human genital organs.
F. Specified Anatomical Areas: Less than completely and opaquely covered
human genitals, pubic region or pubic hair, buttock, and female breast below
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a point immediately above the top of the areola; or human male genitals in a
discernibly turgid state even if completely and opaquely covered.
G. Specified Sexual Activities: Human genitals in a state of sexual stimulation
or arousal or acts of human masturbation, sexual intercourse, sodomy, or
fondling or other erotic touching of human genitals, pubic region, buttock, or
female breast.
Subdivision 3. License Required
No person may own, operate, or manage a Sexually Oriented Business within the
City unless the person holds a valid license under this Section. Such a license
requirement is not intended to and shall not unreasonably restrict the opportunity
for Sexually Oriented Businesses to locate in the City. A license shall not be
required for Accessory Sexually Oriented Sales.
Subdivision 4. License Applications
A. Procedure. The application for a license under this Section shall be made on a
form supplied by the City Manager or his/her designee. All forms shall be
complete and shall include all information requested, as follows:
1. For all applicants:
a. Whether the applicant and owner is a natural person, corporation,
partnership, or other form of organization.
b. Name, address, phone number and date of birth of the applicant or
owner and the operator or manager of such operation who shall be
responsible for all code compliance, if different from applicant or
owner.
c. The legal description and address of the premises where the Sexually
Oriented Business is to be located.
d. A floor plan of the premises which details all internal operations and
activities including a statement of the total floor space occupied by the
Sexually Oriented Business. The floor plan need not be professionally
prepared but must be drawn to a designated scale or drawn with
marked dimensions of the interior of the premises to an accuracy of
plus or minus six (6) inches.
e. A Site Plan of the premises for which the license is sought, showing
dimensions, locations of buildings, site and building lighting, street
access, and parking facilities.
f. A building elevation drawing which shows exterior construction,
proposed building signs, materials and colors of the proposed Sexually
Oriented Business. Signs for the Sexually Oriented Business shall be
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prohibited from displaying Specified Anatomical Areas or Specified
Sexual Activities.
g. The name of the business. If the business is to be conducted under a
designation, name, or style other than the name of the applicant, a
certified copy of the certificate required by Minn. Stat. §333.01 shall
be submitted.
h. The activities and types of business to be conducted.
i. The intended hours of operation.
j. The names, residences and business addresses of three (3) persons,
residents of the state, of good moral character, not related to the
applicant or financially interested in the premises or business, who
may be referred to regarding the applicant's character.
k. Whether all taxes due and owing on the premises to be licensed have
been paid.
I. Abstractor's Certificate of property ownership of the subject parcel and
all parcels within five hundred (500) feet of the subject parcel.
2. If the applicant is a natural person:
a. The name, place and date of birth, street and city address, and phone
number of the applicant and operator/manager.
b. Whether the applicant and operator/manager have ever used or has
been known by a name other than his/her name, and if so, the name
or names used and information concerning dates and places where
used.
c. The street and city addresses at which the applicant and
operator/manager have lived during the preceding two (2) years.
d. The type, name and location of every business or occupation in which
the applicant's spouse and operator/manger have been engaged
during the preceding two years and the name(s) and addresses of
their employer(s) and partner(s), if any, for the preceding two (2)
years.
e. Whether the applicant, applicant's spouse and operator/manager have
ever been convicted of a felony, crime, or violation of any ordinance
other than for minor traffic movement violations. If so, they shall
furnish information as to the time, place, and offense for which there
were convictions.
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3. If the applicant is a partnership:
a. The name(s) and addresses of all general partners and the
operator/manager and all of the information concerning each general
partner and the operator/manager that is required of applicants in (b)
of this Section.
b. The name(s) of the managing partner(s) and the interest of each
partner in the business.
c. A true copy of the partnership agreement shall be submitted with the
application. If the partnership is required to file a certificate as to a
trade name pursuant to Minn. Stat. §333.01, a certified copy of such
certificate shall be attached to the application.
4. If the applicant is a corporation or other organization:
a. The name of the corporation or business form, and if incorporated, the
state of incorporation.
b. A true copy of the Certificate of Incorporation, Articles of Incorporation
or Association Agreement, and By-laws shall be attached to the
Application. If the applicant is a foreign corporation, a Certificate of
Authority as required by Minn. Stat. §303.06, shall be attached.
c. The name of the manager(s), proprietor(s), or other agent(s) in
charge of the business and all of the information concerning each
manager, proprietor or agent that is required of applicants in (b) of
this Section.
d. A statement detailing any felony convictions by the owners of more
than five percent (5%) of the issued and outstanding stock of the
corporation, and whether or not those owners have ever applied for or
held a license to operate a similar type of business in other
communities.
B. Fees
1. Application Fee:
a. The annual license application fee shall be set by the Council.
b. The license application fee shall be paid in full before the application
for a license is accepted. All fees shall be paid to the City Manager or
his/her designee for deposit into the general fund of the City. Fees
shall be non-refundable.
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c. When the license is for premises where the building is not ready for
occupancy, the time fixed for computation of the license fee for the
initial license period shall be ninety (90) days after approval of the
license by the issuing authority or upon the date an occupancy permit
is issued for the building.
2. Investigation Fee:
a. At the time of each original application for a license, the applicant shall
pay an investigation fee as set by the Council. If any investigation
outside the State of Minnesota is required, the applicant shall be
charged the full cost of any out-of-state investigation.
b. At any time an additional investigation is required because of a change
in the ownership or management, the Licensee shall pay all additional
investigation fees. If any investigation outside the State of Minnesota
is required, the applicant shall be charged the full cost of the out-of-
state investigation.
c. If at any time an additional investigation is required to obtain an
amendment to the license, the Licensee shall pay all additional
investigation fees.
C. Execution
1. If the application is that of a natural person, the application shall be
signed and sworn to by that person; if of a corporation, by an officer
thereof; if of a partnership, by one of the general partners; if of an
unincorporated association, by the manager or managing officer thereof.
2. Application for a license under this Section shall be submitted to the City
Manager or his/her designee. Within thirty (30) calendar days of receipt of
a completed application and payment of all licensing application fees, the
City Manager or his/her designee shall verify all information requested of
the applicant in the application including the ordering of criminal
background checks, and conduct any necessary investigation to assure
compliance with this Section. The period for investigation may be
extended by the Council if an out-of-state investigation is required.
D. Consideration and Appeals.
1. The Council shall accept or deny the license after presentation of a
completed license verification and investigation report by the City
Manager or his/her designee. If the application is denied, the applicant
shall be notified in writing by certified mail at the address provided on the
application form. Such notice shall inform the applicant of the his/her
right to request an appeal before the Council within twenty (20) business
days of the license denial or his/her right to immediately challenge a
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license denial in a court of law. The Council shall hear the appeal at the
first scheduled meeting following the completion and submittal of a
Request for Appeal form provided the applicant by the City Manager or
his/her designee.
2. If the Council grants a license for a location where a building is under
construction or not ready for occupancy, the license shall not be delivered
to the Licensee until a Certificate of Occupancy has been issued for the
licensed premises.
Subdivision S. Basis for Denial
The City Manager or his/her designee shall issue a license pursuant to a resolution
of Council granting said license. Such a resolution shall be based on the findings
that none of the following conditions exist with respect to the applicant:
A. The applicant is under the age of twenty-one (21) at the time the application
is submitted;
B. The applicant failed to supply all of the information requested on the license
application;
C. The applicant or applicant's spouse is overdue in his/her payment of City,
County or State taxes, fees, fines or penalties;
D. The applicant gave false, fraudulent, or untruthful information on the license
application;
E. The applicant, spouse, or anyone residing with the applicant has had a
Sexually Oriented Business license revoked or suspended or has been denied
a license to operate an Sexually Oriented Business within a one year period
immediately preceding the date the application was submitted;
F. The applicant or spouse has had a conviction of a felony or a gross
misdemeanor or misdemeanor relating to sex offenses, obscenity offenses, or
adult uses in the past five (5) years;
G. The applicant has an operator or manager who is not eligible for a license
pursuant to this Section;
H. The spouse of the applicant is ineligible for a license pursuant to this Section
or the applicant is not the real party in interest or beneficial owner of the
Sexually Oriented Business operated, or to be operated, under the license;
I. The Sexually Oriented Business does not meet all of the requirements
prescribed in the City Code, Building Code, Fire Code, this Section and all
provisions of State and Federal laws; or
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J. The premises to be licensed as a Sexually Oriented Business is currently
licensed by the City as a Massage Therapy Business under Chapter 6 of the
City Code, or an establishment licensed to sell alcoholic beverages under
Chapter 5 of the City Code.
Subdivision 6. License Renewal
A. All licenses issued under this Section shall expire on December 31 of each
year. Applications for the renewal of an existing license shall be submitted to
the City Manager or his/her designee no later than November 1 of each year.
B. Within thirty (30) calendar days of receipt of a fully completed renewal
application, the City Manager or his/her designee shall verify all information
requested of the applicant in the renewal application, including the ordering
of criminal background checks, and shall conduct any necessary investigation
to assure compliance with this Section. The Council shall then proceed to
issue a renewal license within sixty (60) days of receipt by the City Manager
or his/her designee of a fully completed renewal application, except in cases
where Licensee is found to be out of compliance with this Section.
C. If the Council denies a renewal application, the City Manager or his/her
designee shall notify the applicant by regular mail, stating the grounds for
denial and means for appeal to either the Council or a court of law.
D. If the City denies renewal of a license under this Section, the applicant shall
not be issued a license under this Section for one year from the date of
denial.
Subdivision 7. Scope and General Requirements of License
A. Business Location.
1. Posting of license. A license issued under this Section must be posted in a
conspicuous place in the licensed premises for which it is used.
2. Scope of license. A license issued under this Section is only effective for
the compact and contiguous space specified in the approved license
application.
3. Maintenance of Order. A Licensee and Licensee's designated operator or
manager under this Section shall be responsible for the conduct of the
business being operated. This shall require an operator or manager to be
on the licensed premises during all hours when the business is open to
the public. He/she shall be observant of any illegal activity taking place on
or near the licensed premises, including but not limited to prostitution,
public indecency, indecent exposure, disorderly conduct, or the sale or
use of illegal drugs. He/she shall immediately notify the City Police
Department upon witnessing any said illegal activity. Any omission of
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notification of illegal activity to the operator or manager by an employee
or independent contractor shall be considered an act of omission by the
Licensee and shall result in Sanctions against the Licensee.
B. License Transfer Restrictions. A license granted under this Section is for the
person and the licensed premises named on the approved license application.
No license may be transferred from place to place, person to person, or
corporation to corporation. Any sale, purported transfer or relocation shall
require a new application and approval under the terms hereof before the
business may operate. No Sexually Oriented Business may operate without a
valid license.
C. Change in Partnership, Corporation, or Association.
1. Licenses issued to corporations, associations, and partnerships shall be
valid only so long as there is no change in the officers, ownership, or
management of the corporation, unless such change is approved by the
Council, in which event said license shall continue in force until the end of
the current year. The Council requires sixty (60) days notice prior to any
change in officers, ownership, or management to give reasonable
consideration to any such changes' effects. Said notice shall require all
application information required on the license application for any new
officers, owners, or managers. Said notice shall designate an interim
officer, owner, or manager.
2. The designation of a new operating officer shall not cause the
corporation's license to become invalid before a decision is rendered by
the Council provided proper notice and application are completed. A
proposed new operating officer shall be referred to as the interim
operating officer. In the event an interim operating officer is rejected by
the Council, the corporation shall designate another interim operating
officer and make the required application within fifteen (15) calendar days
of the Council's decision.
D. Change in Building, Premises, and Character of Business. An application for
approval of any proposed enlargement, change in character of the
establishment, or extension of previously licensed premises shall be made to
the City Manager or his/her designee before the application is made for a
building permit for any such change. Such alterations require an amendment
to the license. A building permit shall not be issued until the Council
approves an amendment to the license.
E. Hours of Operation. No licensed premises shall be open to the public for
business between the hours of 1 am and 10am.
F. Restriction Regarding Persons under Age Eighteen (18). Licensee shall not
allow persons under the age of eighteen (18) to enter the licensed premises.
Licensee shall require age identification from all persons entering licensed
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premises, unless Licensee knows said persons to be over the age of eighteen
(18). Should persons under age eighteen (18) enter the licensed premises,
Licensee shall immediately remove said persons from the licensed premises
or shall be sanctioned as outlined in this Section.
G. Sanitation and Health.
1. Partitions Facilitating Sexual Activity. A Licensee under this Section shall
not allow any partition between a subdivision, portion, or part of the
licensed premises having any aperture which is designed or constructed to
facilitate Specified Sexual Activities between persons on either side of the
partition.
2. Restrictions on Booths, Stalls, and Partitions. A Licensee under this
Section shall not have on the licensed premises any booths, stalls, or
partitions used for the viewing of motion pictures or other forms of
entertainment that have doors, curtains, or portal partitions, unless such
booths, stalls, or partitions have at least one side open to an adjacent
public room so that the area inside the booth, stall, or partition is visible
to persons in the adjacent public room. Such booths, stalls, or partitions
shall be well lit and visible from the adjacent public rooms. Reclining
surfaces inside booths, stalls, or partitions are prohibited. Such booths,
stalls, or partitions shall only be occupied by one person at a time.
3. Distance Requirement for Live Adult Entertainment. All performers,
dancers, and persons providing live entertainment distinguished or
characterized by an emphasis on matters depicting, describing, or relating
to Specified Sexual Activities or Specified Anatomical Areas in the licensed
premises or in areas adjoining the licensed premises where such
entertainment can be seen by patrons of the licensed premises shall
remain at all times a minimum distance of ten (10) feet from all patrons,
customers, or spectators and shall dance or provide such entertainment
on a platform intended for that purpose, which shall be raised at least two
(2) feet from the level of the floor on which patrons or spectators are
located.
4. Interaction with Patrons. No person providing live entertainment
distinguished or characterized by an emphasis on matters depicting,
describing, or relating to Specified Sexual Activities or Specified
Anatomical Areas in the licensed premises shall come into physical contact
with any spectator or patron.
5. Duty to Supervise. The Licensee shall not permit Specified Sexual
Activities to take place on the licensed premises and shall be responsible
for supervision of the licensed premises and prevent any such activities.
H. Right of Inspection. Prior to issuance of an initial license or renewal license, a
health inspector, police officer, building inspector or a City designee must
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inspect the licensed premises for compliance with this Section and applicable
building and health codes. Any health inspector, police officer, building
inspector or any properly designated officer or employee of the City shall
have the unqualified right to enter, inspect and search the licensed premises
of any Licensee hereunder at any time without a warrant.
Subdivision S. Sanctions for Violations
A. Suspension. The City Council may suspend a license issued pursuant to this
Section for up to ninety (90) days if the City Council determines that a
Licensee or the Licensee's designated operator or manager has committed
the following:
1. Fraud, misrepresentation, or false statement contained in a license
application or a renewal application.
2. Fraud, misrepresentation, or false statement made in the course of
carrying on the licensed occupation or business.
3. Any violation of this Section.
4. A crime, resulting in conviction directly related to the occupation or
business conducted by the Licensee upon the licensed premises as defined
by Minnesota Statutes, Section 364.03, Subdivision 2, provided that the
Licensee cannot show competent evidence of sufficient rehabilitation and
present fitness to perform the duties required by the occupation or
business conducted by the Licensee upon the licensed premises as defined
by Minnesota Statutes, Section 364.03, Subdivision 3.
5. Conduct of business or operation upon the licensed premises in an
unlawful manner or in such a manner as to constitute a breach of the
peace or to constitute a menace to the health, safety, or general welfare
of the community.
B. Revocation. The City Council may revoke a license if the City Council
determines that:
1. The Licensee's license was suspended in the preceding fourteen (14)
months and an additional cause for suspension as detailed in Subdivision
8(A) above is found by the City Council to have occurred within the
fourteen (14) month period;
2. The Licensee gave false or misleading information in the material
submitted to the City during the application process;
3. A Licensee or an employee or independent contractor of the Licensee has
knowingly allowed possession, use, or sale of controlled substances on the
licensed premises;
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4. A Licensee or an employee or independent contractor has knowingly
allowed prostitution on the licensed premises;
5. A Licensee violated any of the provisions of Minnesota Statutes Section
617.241-617.299 relating to the illegal distribution, possession, or sale of
obscene materials;
6. A Licensee or an employee knowingly operated the Sexually Oriented
Business during a period of time when the Licensee's License was
suspended.
7. A Licensee or Licensee's operator or manager has been convicted of an
offense listed in Subdivision 9 (F) of this Section for which the time period
required has not elapsed;
8. On two (2) or more occasions within a twelve (12) month period, a person
or persons committed an offense occurring in or on the licensed premises
of a crime listed in this Section for which a conviction has been obtained,
and the person or persons were employees or independent contractors of
the Licensee at the time the offenses were committed;
9. A Licensee or an employee or independent contractor of the Licensee has
knowingly allowed specified sexual activities to occur in or on the licensed
premises; or
10. A Licensee is delinquent in payment to the City, County, State or Federal
Governments for hotel occupancy taxes, ad valorem taxes, sales taxes,
real property taxes or other financial obligations.
C. Hearing Procedures. A revocation or suspension shall be preceded by written
notice to the Licensee and a public hearing before the City Council. The
notice shall give at least eight (8) days notice of the time and place of the
public hearing and shall state the nature of the charges against the Licensee.
The notice shall be mailed to the Licensee at the most recent address listed
on the application.
Source: Ordinance No. 322, 2nd Series
Effective Date: 03-25-05
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