Aurora City Zoning Code

CHAPTER 1167

Regulation of Sexually Oriented Businesses

1167.01 PURPOSE AND INTENT.

It is the purpose of this chapter to regulate sexually 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 prevent the concentration of sexually oriented businesses within the City. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this chapter 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.

(Ord. 2000-143. Passed 6-26-00.)

1167.02 DEFINITIONS.

Definitions relating to this Chapter are located in Section 1133.06.

(Ord. 2000-143. Passed 6-26-00.)

1167.03 CLASSIFICATION.

Sexually oriented businesses are classified as follows:

(a) Adult arcades;

(b) Adult bookstores or adult video stores;

(d) Adult motels;

(e) Adult motion picture theaters;

(f) Adult theaters;

(g) Escort agencies;

(h) Nude model studios; and

(i) Sexual encounter centers.

(Ord. 2000-143. Passed 6-26-00.)

1167.04 LICENSE REQUIRED.

(a) A person commits an offense if he operates a sexually oriented business without a valid license, issued by the City for the particular type of business.

(b) An application for a license must be made on a form provided by the Chief of Police. The application must be accompanied by 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 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 (6"). Applicants who must comply with Section 1167.18 of this Chapter shall submit a diagram meeting the requirements of Section 1167.18.

(d) If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a twenty percent (20%) or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under Section 1167.05 and each applicant shall be considered a licensee if a license is granted.

(Ord. 2000-143. Passed 6-26-00.)

1167.05 ISSUANCE OF LICENSE.

(a) The Chief of Police shall approve the issuance of a license to an applicant within thirty (30) days after receipt of an application unless the Chief of Police finds one or more of the following to be true:

(1) An applicant is under eighteen (18) years of age.

(2) An applicant or an applicant’s spouse is overdue in payment to the City of taxes, fees, fines, or penalties assessed against or imposed upon the applicant or the applicant’s spouse in relation to a sexually oriented business.

(3) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form.

(4) An applicant or an applicant’s spouse has been convicted or a violation of a provision of this Chapter, other than the offense of operating a sexually oriented business without a license, within two (2) years immediately preceding the application. The fact that a conviction is being appealed shall have no affect.

(5) The license fee required by this Chapter has not been paid.

(6) An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding twelve (12) months and has demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers.

(7) An applicant or the proposed establishment is in violation of or is not in compliance with this Chapter.

(8) An applicant or an applicant’s spouse has been convicted of a crime:

A. Involving any of the following offenses:

1. Prostitution;

2. Promotion of prostitution;

3. Aggravated promotion of prostitution;

4. Compelling prostitution;

5. Obscenity;

6. Sale, distribution, or display of harmful material to minor;

7. Sexual performance by a child;

8. Possession of child pornography;

9. Public lewdness;

10. Indecent exposure;

11. Indecency with a child;

12. Sexual assault or aggravated sexual assault;

13. Incest, solicitation of a child, or harboring a runaway child; or

14. Criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses:

B. For which:

1. Less than two (2) 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;

2. Less than five (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or

3. Less than five (5) 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 convictions are of two (2) or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty-four (24) month period.

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

(c) An applicant who has been convicted or whose spouse has been convicted of an offense listed in subsection (a)(8) may qualify for a sexually oriented business license only when the time period required by 1167.05(a)(8)B has elapsed.

(d) 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 sexually oriented business. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time.

(Ord. 2000-143. Passed 6-26-00.)

1167.06 FEES.

The annual fee for a sexually oriented business license is Two Hundred Dollars ($200.00).

(Ord. 2000-143. Passed 6-26-00.)

1167.07 INSPECTION.

(a) An applicant or licensee shall permit representatives of the Police Department, Health Department, Fire Department, Housing Department, and Building Inspection Division to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business.

(b) A person who operates a sexually oriented business or his agent or employee commits an offense if he refuses to permit a lawful inspection of the premises by a representative of the Police Department at any time it is occupied or open for business.

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

(Ord. 2000-143. Passed 6-26-00.)

1167.08 EXPIRATION OF LICENSE.

Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in Section 1167.04. Application for renewal should be made at least thirty (30) days before the expiration date, and when made less than thirty (30) days before the expiration date, the expiration of the license will not be affected.

(Ord. 2000-143. Passed 6-26-00.)

1167.09 SUSPENSION.

The Chief of Police shall suspend a license for a period not to exceed thirty (30) days if he determines that a licensee or an employee of a licensee has:

(a) Violated or is not in compliance with this Chapter;

(b) Engaged in excessive use of alcoholic beverages while on the sexually oriented business premises;

(d) Knowingly permitted gambling by any person on the sexually oriented business premises; or

(e) Demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers.

(Ord. 2000-143. Passed 6-26-00.)

1167.10 REVOCATION.

(a) The Chief of Police shall revoke a license if a cause of suspension in Section 1167.09 occurs and the license has been suspended within the preceding twelve (12) months.

(b) The Chief of Police shall revoke a license if he determines that:

(1) A licensee gave false or misleading information in the material submitted to the Chief of Police during the application process;

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

(3) A licensee or an employee has knowingly allowed prostitution on the premises;

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

(5) A licensee has been convicted of an offense listed in Section 1167.05(a)(8)A, for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed;

(6) On two or more occasions with a twelve (12) month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in Section 1167.05(a)(8)A, for which a conviction has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed;

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

(8) A licensee is delinquent in payment to the City for hotel occupancy taxes, income taxes, ad valorem taxes, or sales taxes related to the sexually oriented business.

(d) Subsection (b)(7) hereof does not apply to adult motels as a ground for revoking the license unless the licensee or employee knowingly allowed the act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in a public place or within public view.

(e) When the Chief of Police revokes a license, the revocation shall continue for one (1) year and the licensee shall not be issued a sexually oriented business license for one (1) year from the date revocation became effective. If, subsequent to revocation, the Chief of Police finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least ninety (90) days have elapsed since the date the revocation became effective. If the license was revoked under subsection (b)(5) hereof, an applicant may not be granted another license until the appropriate number of years required under Section 1167.05(a)(8)B has elapsed.

(Ord. 2000-143. Passed 6-26-00.)

1167.11 APPEAL.

If the Chief of Police denies the issuance of a license, or suspends or revokes a license, the Chief of Police shall send the applicant, or licensee, by certified mail, return receipt requested, written notice of the action and the right to an appeal. Upon receipt of written notice of the denial, suspension, or revocation, the licensee whose application for a license has been denied or whose license has been suspended or revoked shall have the right to appeal to the legislative body of the City. An appeal must be filed within thirty (30) days after the receipt of notice of the decision of the Chief of Police. The licensee shall bear the burden of proof.

(Ord. 2000-143. Passed 6-26-00.)

1167.12 TRANSFER OF LICENSE.

A licensee shall not transfer his 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 application.

(Ord. 2000-143. Passed 6-26-00.)

1167.13 LOCATION OF SEXUALLY ORIENTED BUSINESSES.

(a) A person who commits an offense if he operates or causes to be operated a sexually oriented business within 300 feet of:

(1) A church;

(2) A public or private elementary or secondary school;

(3) A boundary of a residential or historic district as defined in this Chapter;

(4) A public park; or

(5) The property line of a lot devoted to residential use as defined in this Chapter.

(b) A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 500 feet of another sexually oriented business. A person commits an offense if he causes or permits the operation, establishment, or maintenance of more than one (1) sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.

(c) For the purposes of subsection (a) hereof, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a church or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or residential lot.

(d) For purposes of subsection (b) hereof, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

(e) Any sexually oriented business lawfully operating on May 1, 1998, that is in violation of subsections (a), (b), or (c) hereof shall be deemed a nonconforming use. The nonconforming use will be permitted to continue for a period not to exceed five (5) years, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two (2) or more sexually oriented businesses are within 500 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later-established business(es) is nonconforming.

(f) A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business license, of a church, public or private elementary or secondary school, public park, residential district, or residential lot within 500 feet of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application for a license is submitted after a license has expired or has been revoked.

(Ord. 2000-143. Passed 6-26-00.)

1167.14 ADDITIONAL REGULATIONS FOR ESCORT AGENCIES.

(a) An escort agency shall not employ any persons under the age of eighteen (18) years.

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

(Ord. 2000-143. Passed 6-26-00.)

1167.15 ADDITIONAL REGULATIONS FOR NUDE MODEL STUDIOS.

(a) Any nude model studio shall not employ any person under the age of eighteen (18) years.

(b) A person under the age of eighteen (18) years commits an offense if he appears in a state of nudity in or on the premises of a nude model studio. It is a defense to prosecution under this subsection if the person under eighteen (18) years was in a restroom not open to public view or persons of the opposite sex.

(c) A person commits an offense if he appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises which can be viewed from the public right-of-way.

(d) A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room open to the public.

(Ord. 2000-143. Passed 6-26-00.)

1167.16 ADDITIONAL REGULATIONS FOR ADULT THEATERS AND

(a) A person commits an offense if he knowingly allows a person under the age of eighteen (18) years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater.

(b) A person under the age of eighteen (18) years commits an offense if he knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater.

(c) It is a defense to prosecution under subsections (a) and (b) hereof if the person under eighteen (18) years was in a restroom not open to public view or persons of the opposite sex.

(Ord. 2000-143. Passed 6-26-00.)

1167.17 ADDITIONAL REGULATIONS FOR ADULT MOTELS.

(a) Evidence that a sleeping room in a hotel, motel, or similar commercial establishment has been rented and vacated two or more times in a period of time that is less than ten (10) hours creates a rebuttal presumption that the establishment is an adult motel as that term is defined in this Chapter.

(b) A person commits an offense if, as the person in control of a sleeping room in a hotel, motel, or similar commercial establishment that does not have a sexually oriented business license, he rents or sub-rents a sleeping room to a person and, within ten (10) hours from the time the room is rented, he rents or sub-rents the same sleeping room again.

(c) For purposes of subsection (b) hereof, the terms “rent” or “sub-rent” mean the act of permitting a room to be occupied for any form of consideration.

(Ord. 2000-143. Passed 6-26-00.)

1167.18 REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT FILMS OR VIDEOS.

(a) A person who operates or causes to be operated a sexually 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, 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 business 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 thirty-two (32) square feet of floor area. The diagram shall also designate the place at which the permit 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 should be oriented to the north or to some designated street road 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 (6) inches. The Chief of Police 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 Chief of Police or his designee.

(4) It is the duty of the owners and operators of the premises to ensure that at least one (1) 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 (2) 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 subsection must be by direct line of sight from the manager’s station.

(6) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the view area specified in subsection (b)(5) hereof remains unobstructed by any doors, wall, merchandise, display racks or other materials at all times that any patron is present in the premises and 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 subsection (a)(1) hereof.

(7) 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 one foot candle as measured at the floor level.

(8) It shall be the duty of the owners and operator and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above, is maintained at all times that any patron is present in the premises.

(b) A person having a duty under subsections (a)(1) through (8) hereof commits an offense if he knowingly fails to fulfill that duty.

(Ord. 2000-143. Passed 6-26-00.)

1167.19 DISPLAY OF SEXUALLY EXPLICIT MATERIAL TO MINORS.

(a) A person commits an offense if, in a business establishment open to persons under the age of eighteen (18) years, he displays a book, pamphlet, newspaper, magazine, film, or video cassette, the cover of which depicts, in a manner calculated to arouse sexual lust or passion for commercial gain or to exploit sexual lust or perversion for commercial gain, any of the following:

(1) Human sexual intercourse, masturbation, or sodomy;

(2) Fondling or other erotic touching of human genitals, pubic region, buttocks, or female breasts;

(3) Less than completely and opaquely covered human genitals, buttocks, or that portion of the female breast below the top of the areola; or

(4) Human male genitals in a discernibly turgid state, whether covered or uncovered.

(b) In this section “display” means to locate an item in such a manner that, without obtaining assistance from an employee of the business establishment:

(1) It is available to the general public for handling and inspection; or

(2) The cover or outside packaging on the item is visible to members of the general public.

(Ord. 2000-143. Passed 6-26-00.)

1167.99 PENALTY.

(a) Except as provided by subsection (b) or (c) hereof, any person violating this Chapter, upon conviction, is punishable by a fine not to exceed One Thousand Dollars ($1,000.00).

(b) It is a defense to prosecution under Sections 1167.04(a), 1167.13, or 1167.15(d) that a person appearing in a state of nudity did so in a modeling class operated:

(1) By a college, junior college, or university supported entirely or partly by taxation;

(2) By a private college or university which maintains and operates educational programs in which credits are transferrable to a college, junior college or university supported entirely or partly by taxation; or

(3) In a structure:

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

B. Where in order to participate in a class a student must enroll at least three (3) days in advance of the class; and

C. Where no more than one nude model is on the premises at any one time.

(c) It is a defense to prosecution under Sections 1167.04(a) or 1167.13 that each item of descriptive, printed, film, or video material offered for sale or rental, taken as a whole, contains serious literary, artistic, political, or scientific value.