The purpose of these regulations is to provide for the regulation and licensing of sexually oriented businesses within the Town in a manner which will protect the property values, neighborhoods and residents from the potential adverse secondary effects of sexually oriented businesses while providing to those who desire to patronize sexually oriented businesses the opportunity to do so. It is not the intent of this Chapter to suppress any speech activities protected by the First and Fourteenth Amendments of the United States Constitution or Article II, Section 10 Colorado Constitution, but to impose content-neutral regulations, which address the adverse secondary effects of sexually oriented businesses. Nothing in this Chapter is intended to authorize or license anything otherwise prohibited by law.

Sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution. The concern over sexually transmitted diseases is a legitimate health concern of the Town, which demands reasonable regulation of sexually oriented businesses to protect the health and well-being of the citizens, including the patrons of sexually oriented businesses. Licensing of sexually oriented businesses is a legitimate and reasonable means of ensuring that operators of sexually oriented businesses comply with reasonable regulations and that the operators do not knowingly allow their businesses to be used as places of illegal sexual activity or solicitation. There is convincing documented evidence that sexually oriented businesses, because of their nature, have a deleterious effect on both the existing businesses around them and surrounding residential areas causing increased crime and downgrading of property values. The purpose of this Chapter is to control adverse effects from sexually oriented businesses and thereby protect the health, safety and welfare of the citizens; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of the surrounding neighborhoods and deter the spread of urban blight. This Article is authorized by Section 31-15-401, C.R.S. and other applicable law.

(Ord. 2015-3, §1, 1-4-2016)

(A)

It shall be unlawful for any person to operate a sexually oriented business without a license issued by the Licensing Officer under the provisions of this Chapter.

1.

An application for a license must be made on a form provided by the Town.

2.

The application must be accompanied by a diagram showing the configuration of the premises, including a statement of total floor space occupied by the business, and designating the use of each room or other area of the premises.

3.

The diagram shall designate those rooms or other areas of the premises where patrons are not permitted.

4.

The 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").

5.

The diagram shall designate the place at which the license will be conspicuously posted.

6.

No alteration in the configuration of the premises or any change in use of any room or area as shown on the diagram may be made without the prior written approval of the Town.

7.

The Licensing Officer 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 and that the use of any area or room in the premises has not changed.

(B)

The applicant must be qualified according to the provisions of this Article and the premises must be inspected by the Fire Department, Building Official of the Building Department and the Licensing Officer and found to be in compliance with the law.

(C)

Contemporaneously with the submission of an application for a license, the applicant shall submit a special use permit indicating that the requirements of Article VI of the Fairplay Municipal Code are met unless the applicant's sexually oriented business is an existing nonconforming use under the provisions of Article XXI of the Fairplay Land Use Regulations. In the event that such permit is subject to appeal, no further action shall be taken upon such application until such appeal is finally adjudicated.

(Ord. 2015-3, §1, 1-4-2016)

(A)

The sexually oriented business shall be issued a license within thirty (30) days after receipt of an application if the requirements set forth in this Article are met, unless the Licensing Officer finds one (1) or more of the following:

1.

An applicant is overdue in payment to the Town of taxes, fees, fines or penalties assessed against the applicant or imposed upon the applicant in relation to a sexually oriented business.

2.

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.

3.

The premises to be used for the sexually oriented business have not been approved by the Fire Department, the Building Official and the Licensing Officer as being in compliance with applicable laws and ordinances.

4.

The applicant has not been issued a special use permit by the Town indicating the requirements of the Fairplay Municipal Code are met and that such permit, if issued, is not subject to appeal or the applicant's sexually oriented business is a legal existing nonconforming use.

(B)

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.

(C)

The Fire Department and Building Official shall complete their certification that the premises are in compliance or not in compliance within twenty (20) days of receipt of the application by the Licensing Officer. Their certifications shall be promptly presented to the Licensing Officer. The Licensing Officer's inspection shall be completed within thirty (30) days after the receipt of the application.

(D)

A denial by the Licensing Officer of the application shall be in accordance with Article. The applicant may appeal the denial in accordance with the provisions of this Article.

(Ord. 2015-3, §1, 1-4-2016)

(A)

It shall be unlawful for any person to work as a manager of a sexually oriented business without first registering with the Licensing Officer.

(B)

The registration of a manager with the Licensing Officer is in lieu of the issuance of a license to a manager.

(C)

The Licensing Officer shall register a manager if all of the requirements for a license as set forth in this Article are met.

(D)

The manager's registration shall be issued or denied in accordance with the criteria for issuance or denial of a license as set forth in this Article.

(E)

The registration may be suspended or revoked for any grounds for the suspension or revocation of a license as set forth in this Article.

(Ord. 2015-3, §1, 1-4-2016)

Each licensee will provide to the Licensing Officer the full name, aliases if any, address, telephone number and date of birth of any employee within five (5) days of employment.

(Ord. 2015-3, §1, 1-4-2016)

(A)

The licensee or the licensee's employees shall permit representatives of the Marshal's Department, Mesa County Health Department, Building Official of the Building Department, the Fire Department, Planning Department, Licensing Officer or other Town departments or agencies to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law as provided for in this Article.

(B)

Town departments and agencies shall conduct such inspections in a reasonable manner and only as frequently as may be reasonably necessary.

(C)

Inspections shall take place during the regular business hours of the sexually oriented business or when any person is on the premises.

(D)

It shall be unlawful for the licensee or any employee to refuse to permit such lawful inspection of the premises as provided in this Article.

(Ord. 2015-3, §1, 1-4-2016)

Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in this Article.

(Ord. 2015-3, §1, 1-4-2016)

(A)

In addition to the grounds set forth for suspension or revocation of a license in this Article, the Licensing Officer shall suspend a license for a period not to exceed six (6) months and may revoke a license if the Licensing Officer determines that a licensee or an employee of a licensee has:

1.

Violated or is not in compliance with any section of this Article.

2.

Refused to allow an inspection of the sexually oriented business premises as authorized by this Chapter.

3.

Knowingly permitted any unlawful act upon the premises.

(B)

In determining the action to be taken as provided in this Article, the Licensing Officer shall consider the following aggravating and mitigating circumstances:

1.

Whether the licensee has been previously suspended or revoked.

2.

Whether the licensee was warned that the conduct involved could lead to a suspension or revocation.

3.

Whether the cause for suspension or revocation involves one (1) or several violations.

4.

Whether the violation(s) are technical or substantive in nature.

5.

The extent to which the licensee, licensee's agents and employees, as opposed to patrons, were involved in the violation(s).

6.

The extent to which the licensee or licensee's employees had knowledge of the violation(s).

7.

Any corrective or remedial action the licensee has taken to prevent similar violation(s) in the future.

8.

Whether the violation(s) involved the commission of a crime, and if so, the degree of felony or misdemeanor involved.

9.

The extent to which the violation(s) caused personal injuries or property damages.

10.

Whether the licensee has paid damages or made restitution to any person or entity damaged by the violation(s).

11.

The extent to which the violations posed a significant risk to the health, safety and welfare of persons on or off of the licensed premises.

12.

The length of time over which the violation(s) extended.

13.

The extent to which the licensee or licensee's employees realized a financial gain from the violation(s).

14.

The number of employees, patrons, or both involved in the violation(s).

15.

The nature and extent of enforcement action taken by the Town or any law enforcement to detect the violation(s).

16.

The involvement of any persons under twenty-one (21) years of age in the violation(s).

17.

The extent to which the licensee or licensee's employees have attempted to cover up the violation(s), destroy evidence or otherwise hinder the investigation and detection of the violation(s).

18.

The extent to which the licensee and licensee's employees have acted in good faith.

(Ord. 2015-3, §1, 1-4-2016)

(A)

The Licensing Officer shall revoke a license if the Licensing Officer determines that:

1.

A license has previously been suspended within the preceding twelve (12) months;

2.

A licensee gave false information in the material submitted to the Licensing Officer;

3.

A licensee or employee has knowingly allowed possession, use, or sale of a controlled substance as defined in Part 3 of Article 22 of Title 12 C.R.S. on the premises;

4.

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

5.

A licensee or an employee knowingly operated the sexually oriented business during a period of time when the license was suspended.

6.

Excluding conduct within a private room of an adult motel, a licensee or employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or other sexual conduct to occur on the premises.

(B)

When the Licensing Officer revokes a license, the revocation shall continue for one (1) year, and the licensee shall not be issued a sexually oriented license for one (1) year from the date revocation became effective.

(Ord. 2015-3, §1, 1-4-2016)

(A)

It shall be unlawful for a sexually oriented business to be open for business or for the licensee or any employee of a licensee to allow patrons upon the licensed premises from:

1.

On any Tuesday through Saturday from 2:00 a.m. until 7:00 a.m.;

2.

On any Monday other than a Monday which falls on January 1, from 12:00 a.m. (midnight) until 7:00 a.m.;

3.

On any Sunday from 2:00 a.m. until 8:00 a.m.;

4.

On any Monday which falls on January 1, from 2:00 a.m. until 7:00 a.m.

(B)

This Article shall not apply to those areas of an adult motel, which are private rooms.

(Ord. 2015-3, §1, 1-4-2016)

(A)

A licensee who has peep booths upon the premises shall comply with all of the following requirements:

1.

The diagram accompanying an application for a license shall specify the location of one (1) or more manager's stations.

2.

It is the duty of the licensee 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.

3.

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 film or video reproduction equipment or equipment for showing slides or photographs. If the premises has two (2) or more manager's stations, 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 (1) of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station.

4.

It shall be the duty of the licensee and employees present on the premises to ensure that the view area specified in Subsection (A)(3) above remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated in the application as an area to which patrons will not be permitted.

5.

It shall be the duty of the licensee to ensure that all walls shall be maintained without holes or damage.

6.

No peep booth may be occupied by more than one (1) person at any time.

(B)

It shall be unlawful for any person having a duty under this Article to knowingly fail to fulfill that duty.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Excluding a private room of an adult motel, the interior portion of the premises to which patrons are permitted access shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place at an illumination of not less than two (2.0) foot-candle as measured at the floor level.

(B)

It shall be the duty of the licensee and employees present on the premises to ensure that the illumination described above is maintained at all times that any patron is present on the premises.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Any adult cabaret or adult theater shall have one (1) or more separate areas designated in the diagram submitted as part of the application as a stage for the licensee or employees to perform as entertainers. Entertainers shall perform only upon the stage. The stage shall be fixed and immovable. No seating for the audience shall be permitted within three (3) feet of the edge of the stage. No members of the audience shall be permitted upon the stage or within three (3) feet of the edge of the stage.

(B)

It shall be unlawful for the licensee or for any employee to violate any of the requirements of this Article or to knowingly permit any patron to violate the requirements of this Article.

(C)

In any adult theater or adult cabaret that features persons who appear in a state of nudity or live performances, which are characterized by the exposure of specified anatomical areas or by specified sexual activities, the licensee and all employees present on the premises and all patrons must be at least twenty-one (21) years of age.

(Ord. 2015-3, §1, 1-4-2016)

(A)

No licensee or employee mingling with the patrons, or serving food or drinks, shall be unclothed or in such attire, costume or clothing, so as to expose to view any specified anatomical area.

(B)

No licensee or employee shall encourage or knowingly permit any person upon the premises to touch, caress or fondle the breasts, anus or specified anatomical areas of any person.

(C)

No licensee or employee shall violate the requirements of this Article.

(D)

It shall be unlawful for any licensee or employee to knowingly permit a patron to violate any of the requirements of this Article.

(Ord. 2015-3, §1, 1-4-2016)

(A)

It shall be unlawful for any employee of a sexually oriented business to receive tips from patrons except as set forth in this Article.

(B)

A licensee that desires to provide for tips from its patrons shall establish one (1) or more boxes or other containers to receive tips. All tips for such employees shall be placed by the patron of the sexually oriented business into the tip box.

(C)

A sexually oriented business that provides tip boxes for its patrons as provided in this Article shall post one (1) or more signs to be conspicuously visible to the patrons on the premises in letters at least one (1) inch high to read as follows: "All tips are to be placed in tip box and not handed directly to the entertainer. Any physical contact between the patron and the entertainer is strictly prohibited."

An adult motel that, in addition to the renting of private rooms, operates a sexually oriented business as otherwise defined in this Chapter shall comply with all of the requirements set forth in this Chapter pertaining to that business.

(Ord. 2015-3, §1, 1-4-2016)

Any person who operates or causes to be operated a sexually oriented business without a license is subject to suit for injunction as well as criminal prosecution.

(Ord. 2015-3, §1, 1-4-2016)

Any person who violates any provision of this Chapter, or who fails to perform an act required by any provision of this Chapter, commits a Class A municipal offense.

(Ord. 2015-3, §1, 1-4-2016)

A business license fee of three hundred fifty dollars ($350.00) and a manager's registration fee of seventy-five dollars ($75.00) shall be paid upon submission of an application and annually thereafter upon renewal of the sexually oriented business license.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Except as otherwise provided in this Article, the Licensing Officer shall issue a license to an applicant if he finds after investigation:

1.

All conditions imposed upon the applicant as prerequisites to the issuance of the said license by the terms of the provisions pertaining to the particular license sought have been met including but not limited to meeting the qualifications of applicants standards set forth in this Article.

2.

The required application and license fees have been paid;

3.

The use to which the premises are proposed to be put shall conform to the requirements of applicable building, fire, safety and zoning regulations; and

4.

All other specific requirements of the terms and provisions relating to the application for the particular license requested for use at the premises specified in the application have been met.

(B)

If the Licensing Officer shall not so find he shall thereupon deny such application and notify the applicant of the denial by serving upon the applicant personally a copy of such denial and the reasons supporting such denial or by mailing the same to him by registered or certified mail at the business address shown on the application.

(C)

Any applicant aggrieved by any final order of the Licensing Officer after the denial of such application shall have the right to appeal to the Board of Trustees by filing a written appeal, stating the grounds thereof, with the Licensing Officer within ten (10) days following the date of denial of said application.

(D)

In the event an appeal is timely filed, it shall be heard at the next regular Board of Trustees meeting occurring at least ten (10) days after said filing with the Licensing Officer. Review by the Board shall be a de novo hearing.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Every license issued by the Town for a business or activity to be conducted at a particular street address shall be posted during the period such license is valid. Such license shall be posted in a conspicuous place and shall be visible from the principal entrance of the business or activity. When such license expires, it shall be removed; no license not in full force and effect shall remain posted.

(B)

It shall be the duty of each and every person to whom a license has been issued to exhibit the same upon the request of any peace officer, the Licensing Officer, or other official of the Town.

(Ord. 2015-3, §1, 1-4-2016)

A license shall be obtained in the same manner prescribed herein for each branch establishment or location of the business as if each such branch establishment or location were a separate business; provided that warehouses and wholesale distributing plants used in connection with and incidental to a business licensed under the provisions of this Article shall not be deemed to be separate places of business or branch establishments.

(Ord. 2015-3, §1, 1-4-2016)

No license shall be transferred from one person to another or from one location to another. Any change of ownership or change of location of a licensed business or activity shall require a new application and license with payment of fees therefor according to the provisions pertaining to the particular kind of license.

(Ord. 2015-3, §1, 1-4-2016)

(A)

At any time within thirty (30) days prior to the expiration of his current license, a licensee may make application for a license renewal for the succeeding year and pay the required fees therefor. Unless otherwise provided by this Article, if application is so made and no action or proceeding is pending against the licensee for suspension or revocation of his current license or licenses, he may continue in his business or activity for the succeeding period unless or until his application for license renewal is denied.

(B)

In the event a suspension or revocation proceeding is pending when a license renewal is applied for, the business or activity may continue in operation during the pendency of such suspension or revocation proceeding but the application for a license renewal shall not be acted upon until the suspension or revocation proceeding has been completed.

(Ord. 2015-3, §1, 1-4-2016)

(A)

The general standards set out in this Article relative to the qualifications of every applicant for a Town sexually oriented business license shall be considered and applied by the Licensing Officer. The applicant shall:

1.

Not have a history or prior misconduct, which constitutes evidence that serious criminal conduct, would likely result from the granting of a license issued pursuant to this Article.

2.

No obligations to the Town. Not be in default under the provisions of this Article or indebted to or obligated in any manner to the Town.

3.

Compliance with all Town Regulations. Present certificates furnished by the appropriate officers or agencies to the effect that the proposed use of any premises is in compliance with all applicable Town regulations including, by way of description and not of limitation, zoning, building and fire codes and the like.

(Ord. 2015-3, §1, 1-4-2016)

(A)

The Licensing Officer shall suspend for a period not to exceed six (6) months or revoke any sexually oriented business license issued by the Town if he finds that:

1.

The licensee has failed to pay the annual license fee.

2.

The licensee has failed to file required reports or to furnish such other information as may be reasonably required by the Licensing Officer or other Town official under the authority vested in him by the terms of the provisions relating to the specific license;

3.

The licensee or any agent or employee of such licensee has violated any provisions of this Article pertaining to his license or any regulations or order lawfully made under and within the authority of this Article relating to the license;

4.

The licensee or any agent or employee of such licensee has violated any law of the United States, of the State of Colorado or the Town of Fairplay when such violation occurred on the licensed premises, or relates to conduct or activity of any business required to be licensed by this Article.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Upon commencement of suspension or revocation proceedings, the Licensing Officer shall set a time and place for the hearing of the matter.

(B)

The Licensing Officer shall give the licensee timely notice of the time and place of the hearing and the violations asserted. Such notice shall be served personally or by mailing by first-class mail to the last address furnished to the Licensing Officer by the licensee, at least ten (10) days, including Saturdays, Sundays and legal holidays prior to the hearing. In lieu of such service, or in addition thereto, a copy of such notice may be affixed to the principal entrance of the licensed premises which shall be deemed to be the principal place of business or main office or may be affixed to some prominent structure on such premises.

(C)

In any such action, a public hearing shall be granted at which the licensee shall be afforded an opportunity to be heard, present evidence, cross-examine witnesses, and offer evidence in mitigation of any violations.

(D)

All evidence shall be recorded stenographically or by electronic recording device.

(E)

In all such proceedings, the Town Attorney shall act on behalf of the Town during the hearing.

(Ord. 2015-3, §1, 1-4-2016)

The Licensing Officer or his designee shall conduct hearings for suspension or revocation of licenses granted pursuant to this Chapter. The hearing shall be conducted in accordance with the requirements of the Fairplay Municipal Code. The Licensing Officer shall make findings of fact and conclusions concerning the revocation or suspension of a license. The Licensing Officer shall transmit a copy of the final findings of fact and conclusion to the licensee as provided hereafter.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Upon suspension or revocation of any sexually oriented business license required by this Article, notice of such suspension or revocation shall be given by personally serving the licensee with the order of suspension or revocation or by mailing such order to such person by certified or registered mail at the business address of the licensee as shown on the license or at the address of the designated agent. In lieu of such service, or in addition thereto, a copy of such order may be affixed to the principal entrance of the licensed premises which shall be deemed to be the principal place of business or main office, or may be affixed to some prominent structure on such premises.

(B)

The order shall be effective immediately upon service of notice thereof unless the order provides otherwise. Service of such order shall be complete upon mailing or posting.

(Ord. 2015-3, §1, 1-4-2016)

Upon the effective date of suspension or revocation of any license required for a business or activity, the licensee of such licensed business or activity shall cease and desist from further operation or activity.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Any person aggrieved by any final order of the Licensing Officer after hearing shall have the right to appeal to the Board of Trustees by filing a written appeal with the Town Clerk within ten (10) days following the effective date of the action or order complained of, and such appeal shall have the effect of staying execution of such final order pending appeal.

1.

Contents of appeal. An appeal shall be in writing and shall set out a copy of the order appealed from and shall include a statement of the facts relied upon to contest such order.

2.

Hearing.

a.

The Town Clerk shall fix a time and place for hearing the appeal which shall be at the next regular meeting of the Board of Trustees occurring not less than ten (10) days following receipt of the notice of appeal or the record on appeal, whichever is later, and shall cause written notice of the same to be served upon the applicant informing him thereof. The Town Clerk shall also give such notice to the Licensing Officer and such Officer may appear and defend the order.

b.

Upon appeal to the Board of Trustees of the suspension or revocation, the Board shall review the record, including the transcript of proceedings and evidence before the Licensing Officer, and shall determine whether there is substantial evidence in the record to support the recommendation of the Licensing Officer. If there is substantial evidence in the record to support the recommendation of the Licensing Officer, then the Board shall affirm the decision of the Licensing Officer. If there is not substantial evidence in the record to support the recommendation of the Licensing Officer, then the Board may reverse the recommendation of the Licensing Officer or remand the matter back to the Licensing Officer for further proceedings. No new evidence shall be submitted to the Board unless a majority of the Board determines that such evidence could not have been reasonably presented at the time the matter was heard before the Licensing Officer. If the Board decides to hear new evidence, it may hear the new evidence or remand the matter to the Licensing Officer.

c.

The appellant seeking review of the action of the Licensing Officer, at the time of the filing of the notice of appeal, shall pay to the Town the estimated cost for preparing a transcript of the proceedings before the Licensing Officer. The cost of preparing a transcript of testimony before the Licensing Officer shall be charged at rates ordinarily charged by certified court reporters. The cost of preparing the transcript shall be estimated by the Town Clerk. In the event the cost of the transcript is greater than the cost estimated by the Town Clerk, the appellant shall pay this additional cost within ten (10) days after billing by the Town Clerk. In the event that the cost of the transcript is less than the estimated sum paid by the appellant, the Town Clerk shall refund the excess paid within ten (10) days after actual cost of the transcript is determined.

(Ord. 2015-3, §1, 1-4-2016)

When the conduct of any licensee, agent or employee is so inimical to the public health, safety and general welfare as to constitute a nuisance or hazard and thus give rise to an emergency, the Licensing Officer shall have the authority to summarily order the cessation of business and the closure of the premises pending a hearing on the question of whether to suspend or revoke the license. Unless waived by the licensee in writing, the Board of Trustees, within fifteen (15) days after the Licensing Officer has acted, shall conduct a hearing upon the summary order and the activity giving rise to such order. The order shall state the grounds for its issuance and shall give notice of the hearing and shall be served upon the affected person in the manner prescribed in this Article. At such hearing the licensee shall show cause why the summary suspension should not be made a final order of suspension or revocation.

(Ord. 2015-3, §1, 1-4-2016)

(A)

The decision of the Board of Trustees in all cases shall be final and conclusive and shall be served upon the licensee by personal service, by registered or certified mail, or by posting as provided in this Article.

(B)

A decision of Board of Trustees is reviewable only by the District Court under C.R.C.P. 106(a)(4). There shall be no stay of execution pending a review by the Court except by Court order.

(Ord. 2015-3, §1, 1-4-2016)

(A)

Upon application, stipulation or admission by the licensee, made ten (10) days prior to a scheduled suspension or revocation hearing unless waived by the Licensing Officer, the licensee may request permission to pay a fine in lieu of a hearing. Upon the receipt of the petition, the Licensing Officer or his designee may, in his sole discretion, stay a proposed hearing and cause any investigation to be made which he deems desirable and may, in his sole discretion, grant the petition if he is satisfied:

1.

That the public welfare and morals would not be impaired by permitting the licensee to continue operation and that the payment of the fine will achieve the desired disciplinary purposes;

2.

That the licensee has not had his license suspended or revoked, nor paid any fine in lieu of suspension during the two (2) years immediately preceding the date of the alleged violations; and

3.

That the books and records of the licensee are kept in such a manner that economic loss can be determined with reasonable accuracy therefrom.

(B)

The fine accepted shall be the equivalent to twenty percent (20%) of the estimated gross revenues from the sale of such merchandise or services on the dates of the alleged violations; except that the fine shall be not less than five hundred dollars ($500.00) nor more than ten thousand dollars ($10,000.00).

(C)

Payment of any fine pursuant to the provisions of Subsection (A) shall be payable in full in the form of cash, certified check or cashier's check made payable to the Town of Fairplay. The proceeds of the payment of the fine shall be paid into the General Fund of the Town.

(D)

Upon payment of the fine pursuant to this Article, the Licensing Officer or his designee shall enter his further order permanently staying the suspension or revocation hearing.

(E)

The authority of the Licensing Officer or his designee under this Article is limited to:

1.

The granting of such stays as are necessary for him to complete his investigation and make his findings; and

2.

If he makes such findings, to the granting of an order permanently staying the imposition of the hearing; and

3.

The determination of the fine to be imposed.

(F)

If the Licensing Officer does not make the findings required in this Article and does not order the hearing permanently stayed, the hearing shall proceed as scheduled.

(G)

The determination of the Licensing Officer to deny a fine in lieu of a hearing, or to allow a fine in lieu of a hearing, and the determination of the amount of the fine, shall be final decisions committed to his discretion and not subject to appeal to the Board of Trustees.

(Ord. 2015-3, §1, 1-4-2016)

Adult arcade. 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 maintained to show images to five (5) or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.

Adult bookstore or adult video store. A business having as a substantial and significant portion of its stock and trade, revenues, space or advertising expenditures, resulting from the sale, renting or viewing of one (1) or more of the following:

1.

Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, laser disks, slides or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or

2.

Instruments, devices, or paraphernalia, which are designed for, specified sexual activities.

Cabaret. A nightclub, bar, restaurant or similar business, which regularly features:

1.

Persons who appear in a state of nudity; or

2.

Live performances which are characterized by the exposure to specified anatomical areas or by specified sexual activities; or

3.

Films, motion pictures, video cassettes, slides or other photographic reproductions, which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

Adult motel. A hotel, motel or similar business which offers private rooms to the public and provides patrons live performances or closed-circuit television transmissions, not including pay per view satellite transmissions, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

Adult motion picture theater. A business where films, motion pictures, video cassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

Adult theater. A theater, concert hall, auditorium, or similar business which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.

Employee. Includes any person who is paid directly or indirectly by the licensee for services performed on the premises whether such person would otherwise as a matter of law be classified as an employee, agent, manager, entertainer or independent contractor.

Licensing Officer. The Licensing Officer referred to in this Article is the Town Clerk unless another official has been designated by the Town Administrator or Board of Trustees as the Licensing Officer.

Manager. Any person other than a licensee who is employed by a sexually oriented business to act as a manager or supervisor of the employees, finances or patrons of the business or is otherwise responsible for operation of the business.

Peep booth. A viewing room, other than a private room, of less than one hundred fifty (150) square feet of floor space upon the premises of a sexually oriented business where there is exhibited photographs, films, motion pictures, video cassettes, or other video reproductions, slides or other visual representations which depict or describe specified sexual activities or specified anatomical areas.

Person. An individual, proprietorship, partnership, corporation, association or other legal entity.

Private room. A room in an adult motel that is not a peep booth, has a bed in the room, has a bath in the room or adjacent to the room, and is used primarily for lodging.

Sexual encounter establishment. A business or commercial establishment, which as one of its primary business purposes, offers for any form of consideration, a place where two (2) or more persons may congregate, associate or consort for the purpose of specified sexual activities or the exposure of specified anatomical areas, when one (1) or more of the persons exposes any specified anatomical area.

Sexually oriented business. An adult arcade, adult bookstore, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, sexual encounter establishment or other similar business and includes:

1.

The opening or commencement of any sexually oriented business as a new business.

2.

The conversion of an existing business, whether or not a sexually oriented business, to a sexually oriented business.

3.

The addition of any sexually oriented business to any other existing sexually oriented business.

4.

The relocation of any sexually oriented business; or

5.

The continuation of a sexually oriented business in existence on the effective date of this Chapter.

Specified anatomical areas. Are defined as:

1.

Less than completely and opaquely covered: human genitals, pubic region, buttocks and female breast below a point above the top of the areola.

2.

Human male genitals in a discernibly turgid state even if completely and opaquely covered.

Specified sexual activities. Acts, simulated acts, exhibitions, representations, depictions or descriptions of:

1.

Human genitals in a state of sexual stimulation or arousal.

2.

Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast.

3.

Intrusion, however slight, of any object, any part of an animal's body, or any part of a person's body into the genital or anal openings of any person's body or into the body of an animal.

4.

Cunnilingus, fellatio, anilingus, masturbation, bestiality, lewd exhibition of genitals or excretory function.

5.

Flagellation, mutilation or torture for purposes of sexual arousal, gratification, or abuse.

Stage. A raised floor or platform at least three (3) feet above the surrounding floor measured perpendicularly from the edge of the stage to the surrounding floor and at least thirty-six (36) square feet in area.

(Ord. 2015-3, §1, 1-4-2016)