Aitkin City Zoning Code

ADULT USES

§ 152.170 PURPOSE AND INTENT.

(A) It is the purpose of this subchapter to regulate adult-oriented businesses to promote the health, safety, morals and general welfare of the citizens of the city and to establish reasonable and uniform regulations to:

(1) Prevent additional criminal activity within the city;

(2) Prevent deterioration of neighborhoods and its consequent adverse effect on real estate values of properties within the neighborhood;

(3) To locate adult-oriented businesses away from residential areas, schools, churches, parks and playgrounds; and

(4) Prevent concentration of adult-oriented businesses within certain areas of the city.

(B) The provisions of this subchapter have neither the purpose, nor effect, of imposing a limitation or restriction on the content of any communicative material, including adult-oriented materials. Similarly, it is not the intent, nor the effect, of this chapter to restrict or deny access by adults to adult-oriented materials protected by the First Amendment, or to deny access by distributors and exhibitors of adult-oriented entertainment to their intended market.

(Ord. 332, passed 5-19-2008)

§ 152.171 APPLICATION.

(A) Except as specifically provided for in this subchapter, no structure shall be erected, converted, enlarged, reconstructed or altered, and no structure or land shall be used, for any purpose, nor in any manner that is not in conformity with this subchapter.

(B) No adult-oriented business shall engage in any activity, conduct or permit any other person to engage in or to conduct any activity in or about the establishment which is prohibited by this subchapter, the laws of the state or the United States of America. Nothing in this subchapter shall be construed as authorizing or permitting conduct which is prohibited or regulated by other statutes or ordinances, including, but not limited to, statutes or ordinances prohibiting the exhibition, sale or distribution of obscene material generally or the exhibition, sale or distribution of specified materials to minors.

(Ord. 332, passed 5-19-2008)

§ 152.172 LOCATION.

During the term of this subchapter, no adult-oriented businesses shall be located in any zoning district other than (I) Industrial, as defined and described in this chapter, nor less than 1,000 feet from any church site, school site, day care facility, park or boundary of a residential district, as defined and described in this chapter. In addition, no adult-oriented business may be located within 500 feet of another adult-oriented business. For purposes of this subchapter, this distance shall be a horizontal measurement from the nearest existing residential district boundary or site used for residential purposes, church site, school site, day care site, park site or another adult-oriented business site to the nearest boundary of the proposed adult-oriented business site.

(Ord. 332, passed 5-19-2008) Penalty, see § 152.999

§ 152.173 HOURS OF OPERATION.

No adult-oriented business site shall be open to the public from the hours of 11:00 p.m. to 9:00 a.m.

(Ord. 332, passed 5-19-2008) Penalty, see § 152.999

§ 152.174 EXHIBITION OF SEXUALLY-EXPLICIT FILMS, VIDEOS OR LIVE ENTERTAINMENT IN VIEWING ROOMS.

(A) A person who operates or causes to be operated an adult-oriented business (other than an adult motel) which exhibits on the premises, in a viewing room of less than 150 square feet of floor space, a film, video cassette, live entertainment or other video reproduction which depicts specified sexual activities or specified anatomical areas, shall comply with the following requirements.

(1) Upon application for a sexually-oriented use license, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager’s station may not exceed 32 square feet of floor area. The diagram shall also designate the place at which the permit, if granted, will be conspicuously posted. A professionally prepared diagram in the nature of a licensed engineer’s or architect’s blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should 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 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) The application shall be sworn to be true and correct by the applicant.

(3) No alteration in the configuration or location of a manager’s station may be made without the prior approval of the city.

(4) It is the duty of the licensee of the premises to ensure that at least one licensed employee is on duty and situated in each manager’s station at all times that any patron is present inside the premises.

(5) The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video reproduction equipment. If the premises has two or more manager’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 manager’s stations. The view required in this division (A)(5) must be by direct line of sight from the manager’s station.

(6) It shall be the duty of the licensee to ensure that the view area specified in division (A)(5) above remains unobstructed by any doors, curtains, partitions, walls, merchandise, display racks or other materials and, at all times, 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 in the application filed pursuant to division (A)(1) above.

(7) No viewing room may be occupied by more than one person at any time.

(8) The 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 foot-candles as measured at the floor level.

(9) It shall be the duty of the licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises.

(10) No licensee shall allow openings of any kind to exist between viewing rooms or booths.

(11) No person shall make or attempt to make an opening of any kind between viewing booths or rooms.

(12) The licensee shall, during each business day, regularly inspect the walls between the viewing booths to determine if any openings or holes exist.

(13) The licensee shall cause all floor coverings in viewing booths to be non-porous, easily cleanable surfaces, with no rugs or carpeting.

(14) The licensee shall cause all wall surfaces and ceiling surfaces in viewing booths to be constructed of, or permanently covered by, non-porous, easily cleanable material. No wood, plywood, composition board or other porous material shall be used within 48 inches of the floor.

(B) A person having a duty under divisions (A)(1) through (A)(14) above commits a misdemeanor if he or she knowingly fails to fulfill that duty.

(Ord. 332, passed 5-19-2008) Penalty, see § 152.999

§ 152.175 ESCORT AGENCIES.

(A) An escort agency shall not employ any person under the age of 18 years.

(B) A person commits an offense if the person acts as an escort, or agrees to act as an escort, for any person under the age of 18 years.

(Ord. 332, passed 5-19-2008) Penalty, see § 152.999

§ 152.176 PUBLIC NUDITY.

(A) It shall be a misdemeanor for a person who knowingly and intentionally, in an adult-oriented business, appears in a state of nudity or engages in specified sexual activities.

(B) It shall be a misdemeanor for a person who knowingly or intentionally, in an adult-oriented business, appears in a semi-nude condition unless the person is an employee who, while semi-nude, shall be at least six feet from any patron or customer and on a stage at least two feet from the floor.

(C) It shall be a misdemeanor for an employee, while semi-nude in an adult-oriented business, to receive directly any pay or gratuity from any patron or customer, or for any patron or customer to pay or give any gratuity directly to any employee, while that employee is semi-nude in an adult-oriented business.

(D) It shall be a misdemeanor for an employee, while semi-nude, to knowingly and intentionally touch a customer or the clothing of a customer.

(Ord. 332, passed 5-19-2008) Penalty, see § 152.999

§ 152.177 MINORS IN ADULT-ORIENTED BUSINESSES.

A person commits a misdemeanor if the person knowingly allows a person under the age of 18 years on the premises of a adult-oriented business.

(Ord. 332, passed 5-19-2008) Penalty, see § 152.999

§ 152.178 OPERATION.

(A) Off-site viewing. An establishment operating as an adult-oriented business shall prevent off-site viewing of its merchandise, which if viewed by a minor, would be in violation of M.S. Ch. 617, as it may be amended from time to time, or other applicable federal or state statutes or local ordinances.

(B) Entrances. All entrances to the business, with the exception of emergency fire exits which shall not be usable by patrons to enter the business, shall be visible from a public right-of-way.

(C) Layout. The layout of the display areas shall be designed so that the management of the establishment and any law enforcement personnel inside the business can observe all patrons while they have access to any merchandise offered for sale of viewing including, but not limited to, books, magazines, photographs, video tapes or any other material.

(D) Illumination. Illumination of the premises’ exterior shall be adequate to observe the location and activities of all persons on the premises’ exterior.

(E) Signs. Signs for adult-oriented businesses shall comply with the sign restrictions addressed in §§ 152.120 through 152.125 of this chapter, and in addition, signs for adult-oriented businesses shall not contain representational depiction of an adult nature or graphic descriptions of the adult theme of the operation.

(Ord. 332, passed 5-19-2008) Penalty, see § 152.999

§ 152.179 ALCOHOLIC BEVERAGES; CONSUMPTION OR SALE.

Adult-oriented businesses shall not be located on the same parcel as or on a parcel adjacent to or within 500 feet of an establishment that serves alcoholic beverages. Sale and consumption of alcoholic beverages on a parcel containing an adult use is prohibited.

(Ord. 332, passed 5-19-2008) Penalty, see § 152.999

§ 152.180 LICENSE REQUIREMENTS.

(A) General.

(1) Licenses required. All establishments, including any business operating at the time this subchapter becomes effective, operating or intending to operate an adult-oriented business, shall apply for and obtain a license from the city. A person is in violation of the city ordinance if he or she operates an adult-oriented business without a valid license issued by the city.

(2) Applications. An application for a license must be made on a form provided by the city.

(a) The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of the total floor space occupied by the business. The sketch or diagram 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 inches.

(b) The applicant must be qualified according to the provisions of this subchapter and the premises must be inspected and found to be in compliance with the appropriate state, county and local law and codes by the Health Official, Fire Marshal and Building Official.

(c) All employees of an adult-oriented business must be licensed as an adult-oriented business employee by the city pursuant to this chapter.

(d) Application for license shall contain the following and shall be supplemented in writing by certified mail, return receipt requested, to the enforcement officer within ten working days of a change of circumstances which would render the information originally submitted false or incomplete:

1. Name, business location, business mailing address, phone number and legal description of the property to be used;

2. The full true names and any other names used in the preceding five years, addresses, phone numbers, birthdates of the owners, lessees (if any), the operator or manager and all employees;

3. Either a set of fingerprints suitable for conducting necessary background checks pursuant to this subchapter, or the applicant’s Social Security number, to be used for the same purpose;

4. The names, addresses and phone numbers of two persons, who shall be residents of the state, and who may be called upon to attest to the applicant’s, manager’s or operator’s character;

5. Whether the applicant, manager or operator has ever been convicted of a crime or offense other than a traffic offense and, if so, complete and accurate information detailing the disposition thereof;

6. The names and addresses of all creditors of the applicant, owner, lessee or manager regarding credit which has been extended for the purposes of constructing, equipping, maintaining, operating, furnishing or acquiring the premises, personal effects, equipment or anything incidental to the establishment, maintenance and operation of the business; and

7. Written proof of age, in the form of either:

a. A copy of a birth certificate with a current photo;

b. A current driver’s license with picture; or

c. Other picture identification document issued by a government agency.

(e) If the application is made on behalf of the corporation, joint business venture, partnership or any legally constituted business association, it shall submit along with its application accurate and complete business records showing the names, address and birth dates of all individuals having an interest in the business, including partners, officers, owners and creditors furnishing credit for the establishment, acquisition, maintenance and furnishings of the business. In the case of a corporation, the names, addresses and birth dates of all officers, general managers, members of the board of directors, as well as any creditors who have extended credit for the acquisition, maintenance, operation or furnishing or the establishment, including the purchase or acquisition of any items of personal property for use in the operation.

(f) All applicants shall furnish to the city, along with their applications, complete and accurate documentation establishing the interest of the applicant and any other person having an interest in the premises upon which the building is proposed to be located or the furnishings thereof, personal property thereof or the operation or maintenance thereof. Documentation shall be in the form of a lease, deed, contract for deed, mortgage deed, mortgage credit arrangement, loan agreements, security agreements and any other documents establishing the interest of the applicant or any other person in the operation, acquisition or maintenance of the enterprise.

(3) Application/applicant disqualification. Any one of the following items shall invalidate the application or disqualify the applicant from submitting an application:

(a) The license fee required by this chapter has not been paid; and

(b) An applicant has been convicted of a crime involving any one of the following offenses:

1. Any sex crimes, as defined by M.S. §§ 609.293 through 609.352, inclusive, as they may be amended from time to time, or as defined by any ordinance or statute in conformity therewith;

2. Any obscenity crime, as defined by M.S. §§ 617.293 et seq., as it may be amended from time to time, or as defined by any ordinance or statute in conformity therewith, for which:

a. Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;

b. Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is a felony offense; or

c. Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the conviction is two or more misdemeanor offenses or a combination of misdemeanor offenses occurring within any 24-hour period.

3. The fact that a conviction is being appealed from shall have no effect on disqualification of the applicant or applicant’s spouse.

(4) Requalification. An applicant who has been convicted of an offense listed in division (A)(3) above may qualify for an adult-oriented license only when the time period required by division (A)(3)(b)2. above has elapsed.

(5) Posting. The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date and the address of the adult-oriented business. The license shall be posted in a conspicuous location near the entrance to the adult-oriented business so that it may be easily read at any time.

(6) Council action. The City Council shall act to approve or disapprove the license application within 120 days from the date the application was submitted; provided that, the application contains all of the information required by this subchapter. If the application is deficient, the Council shall act on the application within 120 days from the date that the deficiency has been corrected. The City Administrator shall notify the applicant of the deficiencies in the application.

(7) Appeals. Within 90 days after the decision by the Council, the applicant may appeal to the District Court by serving a notice upon the Mayor or City Administrator.

(B) Investigation and issuance. The City Council shall direct the Police Department or County Sheriff to investigate all facts set forth in the application. An advance fee as set forth in § 33.01 shall be submitted with the application to defray the city’s costs and expenses associated with the background investigation. After the background investigation has been completed and all information required by the application has been submitted to the city, the City Council shall determine whether to grant or to deny the license application.

(D) Inspection.

(1) Access. An applicant or licensee shall permit health officials, representatives of the Police Department, Zoning Administrator and Building Inspection Division, County Sheriff’s office and Fire Department to inspect the premises of an adult-oriented business for the purpose of ensuring compliance with the law and city ordinance at any time it is occupied or open for business.

(2) Refusal to permit inspections. A person who operates an adult-oriented business or his or her agent or employee commits an offense if he or she refuses to permit a lawful inspection of the premises by health officials, representatives of the Police Department, County Sheriff’s Department, Fire Department, Zoning Administrator or Building Inspection Division at any time it is occupied or open for business. Refusal to permit inspections may result in the suspension of the license as provided for in division (F) below.

(3) Exceptions. The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for uses as a permanent or temporary habitation.

(E) Expiration and renewal.

(1) Expiration. Each license shall expire at the end of the calendar year and may be renewed only by making application as provided for in § 152.171 of this chapter. Application for renewal must be made at least 60 days before the expiration date, and when made less than 60 days before the expiration date, the expiration of the license will be unaffected.

(2) Denial of renewal. When the city denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the city finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least 90 days have elapse since the denial date became final.

(F) Suspension.

(1) Causes of suspension. The city may suspend a license for a period not to exceed 30 days if it determines that a licensee or an employee of a licensee has:

(a) Violated or is not in compliance with any provision of this chapter;

(b) Engaged in the use of alcoholic beverages while on the adult-oriented business premises. Refused to allow an inspection of the adult-oriented business premises as authorized by this chapter. Knowingly permitted gambling by any person on the adult-oriented business premises; and/or

(c) Demonstrated the inability to operate or manage an adult-oriented business in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers.

(2) Notice. A suspension by the city shall be preceded by written notice to the licensee and before a hearing. The notice shall give at least ten-days’ notice of the time and place of the hearing and shall state the nature of the charges against the licensee. The notice may be served upon the licensee personally, or by leaving the same at the licensee’s business premises with the person in charge thereof.

(G) Revocation.

(1) Suspended licenses. The city may revoke a license if a cause of suspension in division (F) above occurs and the license has been suspended within the preceding 12 months.

(2) Causes of revocation. The city shall revoke a license if it determines that:

(a) A licensee gave false or misleading information in the material submitted to the city during the application process;

(b) A licensee or an employee knowingly allowed possession, use or sale of controlled substances on the premises;

(d) A licensee or an employee knowingly operated the adult-oriented business during a period of time when the licensee’s license was suspended;

(e) A licensee has been convicted of an offense listed in division (A)(3) above, for which the time period required in division (A)(3)(b)2. above, has not elapsed;

(f) On two or more occasions within a 12-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in division (A)(3) above for which a conviction has been obtained, and the person or persons were employees of the adult-oriented business at the time the offenses were committed;

(g) A licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation or masturbation to occur in or on the licensed premises; and

(h) A licensee has allowed the sale and/or consumption of alcoholic beverages at the adult-oriented business for which a license has been issued herein.

(3) Appeals. The fact that conviction is being appealed shall have no effect on the revocation of the license.

(4) Granting a license after revocation. When the city revokes a license, the revocation shall continue for one year, and the licensee shall not be issued an adult-oriented business license for one year from the date that the revocation became effective. If, subsequent to revocation, the city finds that the basis for revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under division (G)(2)(e) above, an applicant may not be granted another license until the appropriate number of years required under division (A)(3) above have elapsed.

(5) Notice. A revocation by the city shall be preceded by written notice to the licensee and a public hearing. The notice shall give at least ten-days’ notice of the time and place of the hearing and shall state the nature of the charges against the licensee. The notice may be served upon the licensee personally, or by leaving the same at the licensed premises with the person in charge thereof.

(H) Transfer of license. A licensee shall not transfer this license to another, nor shall a licensee operate an adult-oriented business under the authority of a license at any place other than the address designated in the application.

(Ord. 332, passed 5-19-2008)

§ 152.181 EXEMPTIONS.

It is a defense to prosecution under § 152.180(A) of this chapter that a person appearing in a state of nudity did so in a modeling class operated:

(A) By a proprietary school, licensed by the state; 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

(1) Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing;

(2) Where, in order to participate in a class, a student must enroll at least three days in advance of the class; and

(3) Where no more than one nude model is on the premises at any one time.