The city council desires to minimize and control the potential adverse effects of sexually oriented businesses and thereby protect the health, safety, and welfare of the citizens of the City of Leadville. This section regulates the location of sexually oriented businesses which include, but are not limited to, adult arcades, adult bookstores, adult novelty stores, adult video stores, adult motels, adult cabarets, motion picture theaters, nude modeling studios or sexual encounter centers, collectively known as sexually oriented businesses. Sexually oriented businesses shall conform to the requirements of this chapter and the other applicable requirements of this Code. The intent of this chapter is to set reasonable and uniform regulations to prevent the deleterious location and siting of sexually oriented businesses. These regulations impose restrictions no greater than necessary to further the city's interest in preventing negative secondary effects attributable to sexually oriented businesses. This chapter is to be construed as a regulation of time, place, and manner of the location of these businesses, consistent with the United States and Colorado Constitutions. The provisions of this chapter have neither the purpose nor the 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. It is also not the intent of this chapter to condone or legitimize the distribution of obscene material or material not protected by the First Amendment.

(Ord. No. 2010-5, § 3, 8-17-10)

The content of this section applies to the opening of any type of sexually oriented business or any similar business, including, but not limited to, the following:

A.

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

B.

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

C.

The relocation of any sexually oriented business to another location in the city.

(Ord. No. 2010-5, § 3, 8-17-10)

Applicants for a conditional use permit to construct and/or operate a sexually oriented business must meet the following requirements:

A.

Any individual applicant or partner or corporate officer or director or manager of a limited liability company must be twenty-one (21) years of age and shall provide written proof of such fact.

B.

Any false statement of information put forth by the applicant will be grounds for denial of a conditional use permit for a sexually oriented business for a period of one year.

C.

If the applicant or any holder of ten percent (10%) or more of any class or stock, or a director, officer, partner of principal of the applicant has had a sexually oriented business license or permit revoked or suspended anywhere in the State of Colorado or has operated a sexually oriented business that was determined to be a public nuisance under state law or this Code, within one year prior to the application, a conditional use permit for a sexually oriented business shall not be approved.

D.

A corporate applicant, or other similar legal entity applicant, must be in good standing or authorized to do business in the state in which it is organized and must submit proof of same.

E.

All taxes lawfully imposed against the applicant in relation to a sexually oriented business must be paid prior to approval of any new application for a sexually oriented business.

F.

The applicant must provide written proof of and be free of any conviction or nolo contendere plea to any crime involving pandering, prostitution, obscenity or any other crime of a sexual nature, committed in any other jurisdiction, within the five years prior to the date of such application, which would reasonably bring into question the applicant's ability to own and/or operate a sexually oriented business.

(Ord. No. 2010-5, § 3, 8-17-10)

A.

The following requirements and procedures shall apply to conditional use permit applications for a sexually oriented business notwithstanding any contrary provisions set forth in chapter 17.52. In the event of a discrepancy between this chapter and chapter 17.52, this chapter shall control.

B.

Not more than ten (10) days following submission of a conditional use permit application, the planning official shall review the application for completeness and conformance with the application requirements of section 17.89.030 and this chapter. The planning official shall not accept for filing any application that is not complete in every detail. If an omission or error is discovered by the city, the application shall be rejected by the city and returned to the applicant together with a written explanation of the omission or error without further action by the city. Any application rejected by the city due to an omission or error may be resubmitted to the city when the omission or error has been remedied. For the purposes of this chapter, the date the city planning official determines that an application is complete and in conformance with the application requirements of section 17.89.030 in every detail shall be the date the application is deemed filed with the city.

C.

The Leadville Police Department shall be responsible for fingerprints and photographs and for investigation of the background of each individual applicant, the partners of a partnership or the officers, directors, holders of ten percent (10%) or more of the stock of a corporation and all managers of the proposed adult business. The investigation conducted by the Leadville Police Department shall be completed within ten (10) days following submission of a complete conditional use permit application and shall verify the accuracy of all information provided by all applicants, as required to be disclosed by section 17.89.030. Each applicant shall pay a nonrefundable investigation fee at the time the application is filed in the amount then charged by the State Department of Public Safety for each person who will be investigated. At the conclusion of its investigation, the Leadville Police Department shall indicate whether the required information has been verified via a written, signed and dated communication to the planning official.

(Ord. No. 2010-5, § 3, 8-17-10)

A.

An application deemed complete by the planning official shall be scheduled for a combined hearing before planning commission and city council. The planning official shall notify the applicant of the date, time, and place of the hearing before the planning commission and city council. Such notification may be made by the city by telephone provided that a written notice shall also be mailed or delivered to the applicant at the applicant's address shown in the application. In addition, the planning official shall comply with the applicable notice requirements of chapter 17.52. An applicant may be represented at the hearing by an attorney or other representative. An applicant may request and shall be granted a continuation or postponement of the hearing date. Any continuance requested by the city shall require a showing of just cause or the consent of the applicant.

B.

At the public hearing before planning commission and city council, the planning commission and city council shall hear and consider such evidence and testimony presented by the city, the applicant, or any other witnesses presented by the city or the applicant which are relevant to section 17.89.030 and only the following specific criteria of approval for a conditional use permit: section 17.52.040A., B., E., F., G., H. and I. The hearing shall be conducted in conformity with quasi-judicial proceedings and shall permit the relevant testimony of witnesses, cross-examination, and presentation of relevant documents and other evidence. The hearing shall be recorded stenographically or by electronic recording device. Any person requesting a transcript of such record shall pay the reasonable cost of preparing the record.

C.

Not more than ten (10) days following the conclusion of the hearing, the planning commission shall submit its written recommendation to city council. If no written recommendation is issued within such ten-day period, the planning commission shall be presumed to make a positive recommendation. Not more than thirty (30) days following receipt of the planning commission's recommendation, the city council shall render a decision to approve, approve with conditions, or deny the application, and shall send a written order by certified mail, return receipt requested, to the applicant at the address as shown on the application. The order shall include findings of fact and a final decision concerning the approval or denial of the application.

D.

The order of the city council or hearing officer made pursuant to this section shall be a final decision and may be appealed to the district court pursuant to Colorado Rules of Civil Procedure 106(a)(4). For purposes of any appeal, the decision of the city council or hearing officer shall be final upon the earlier of the date of the applicant's receipt of the order or four days following the date of mailing.

E.

To facilitate prompt judicial review of any appeal from the city council or hearing officer to the district court pursuant to Colorado Rules of Civil Procedure 106(a)(4), the city shall agree to an expedited briefing schedule in which each of the deadlines otherwise required for filing of the opening brief, answer brief and reply brief are shortened by at least ten (10) days. The City shall proffer to the applicant a joint motion to the court requesting prompt judicial attention to, and acceleration of, the appeal in accordance with Colorado Rules of Civil Procedure 106(a)(4)(VIII).

(Ord. No. 2010-5, § 3, 8-17-10)

A.

A conditional use permit for a sexually oriented business may be revoked in accordance with section 17.52.050 if any conditions imposed with approval of the permit are violated. In addition, the revocation process may be initiated upon a finding of any of the following factors:

1.

That three repeated disturbances in a six-month period of public peace have occurred within the establishment or upon any parking areas, sidewalks, access ways or grounds within the neighborhood of the establishment involving patrons, employees of the applicant or the applicant him/herself.

2.

That the applicant or any employees thereof have illegally offered for sale or illegally allowed to be consumed or possessed upon the premises or upon any parking areas, sidewalks, walkways, access ways or grounds immediately adjacent to the premises, narcotics, dangerous drugs, fermented malt beverages or any malt, vinous or spirituous liquors.

3.

That the applicant or manager or his or her designee is not upon the premises at all times that the sexually oriented entertainment is being provided.

4.

That the applicant, manager or any employee has allowed patrons to engage in public displays of indecency or has allowed patrons or employees to engage in acts of prostitution or negotiations for acts of prostitution within the establishment or upon any parking areas, sidewalks, accessways or grounds immediately adjacent to the establishment, when the applicant, manager or employee knew or should have known such displays or acts were taking place.

5.

That the applicant is delinquent in payment to the city, county or state any taxes or fees past due.

6.

That the applicant, manager or employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation or masturbation to occur within the premises.

7.

That on two or more occasions within a twelve-month period, a person or persons committed a crime involving pandering, prostitution, obscenity or any other crime that is connected with operating a sexually oriented business, in any jurisdiction, in which a conviction or plea of nolo contendere has been obtained, and the person or persons were employees of the sexually oriented business at the time the offenses were committed.

B.

Where the city seeks to revoke a conditional use permit, a conditional use permit holder shall be entitled to notice and a quasi-judicial hearing before the city council in accordance with section 17.52.050, and the right to appeal conducted in the same manner as a hearing for suspension as provided by section 6.5.302.

(Ord. No. 2010-5, § 3, 8-17-10)

A.

Permits issued under this section shall not be transferable except as provided herein. Any change in the partners of the partnership or in officers, directors or holders of ten percent (10%) or more of the stock of a corporate licensee holding a conditional use permit for a sexually oriented business shall result in termination of the permit unless the applicant files a written notice of change to the planning official within thirty (30) calendar days of any such change. The written notice shall include the names of all new partners, officers, directors and all holders of ten percent (10%) or more of the corporate stock who were not previously holders of such amount of stock.

B.

When a permit has been issued to a husband and wife or to general or limited partners, the death of a spouse or partner shall not require the surviving spouse or partner to obtain a new permit. All rights and privileges granted under the original permit shall continue in full force and effect to such survivors for the balance of the permit.

C.

Each permit issued under this section is separate and distinct and no person shall exercise any of the privileges granted under any permit other than that which he or she holds. A separate permit shall be issued for each specific business or business entity and geographical location.

(Ord. No. 2010-5, § 3, 8-17-10)

A.

It is unlawful to operate or cause to be operated a sexually oriented business in any location except as provided in conformance with this chapter and any other applicable provisions of the Leadville Municipal Code, as may be amended.

B.

Sexually oriented businesses shall only be allowed with the approval of a conditional use permit on properties in the Commercial (C) zoning district as long as the conditions of this chapter are met.

(Ord. No. 2010-5, § 3, 8-17-10)

A.

A sexually oriented business shall not be operated, established, substantially enlarged, or have its ownership or control transferred, if it is within five hundred (500) feet of a:

1.

Church;

2.

Public or private school, day-care home, day-care center, or day-care school;

3.

Public park; or

4.

Another sexually oriented business.

B.

For the purpose of these review standards, measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest property line of the parcel upon which the building or structure used as part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of the church or school, day-care home, day-care center, or school; park, or to the other parcel containing another sexually oriented business.

C.

No more than one sexually oriented business may be operated, established, or maintained in the same building, structure or portion thereof, or the floor area increased of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.

D.

Advertisements, displays or other promotional materials displaying, depicting, or describing specified anatomical areas or sexual activities shall not be shown or exhibited so as to be visible or audible to the public from adjacent streets, sidewalks, or walkways from other areas outside the establishment; and all building openings, entries and windows for sexually oriented businesses shall be located, covered or screened in such a manner as to prevent the interior of such premises from being viewed from outside the establishment.

(Ord. No. 2010-5, § 3, 8-17-10)

A licensee, owner, manager or any employee of a sexually oriented business shall not allow or permit anyone under the age of eighteen (18) years to be in or upon a sexually oriented business, except for establishments which offer on-premises viewing of films or videos or have live entertainment, in which case the age restriction shall be twenty-one (21) years.

(Ord. No. 2010-5, § 3, 8-17-10)

All employees or performers of a sexually oriented business that offers or conducts live adult entertainment shall adhere to the following standards of conduct:

A.

No employee or performer shall mingle with patrons or serve food or drinks while exposing specified anatomical areas.

B.

No employee or performer shall encourage or knowingly permit any person upon the premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person.

C.

No employee or performer shall perform any obscene acts, which simulate specified sexual activities.

D.

No live adult entertainment performance shall be visible anywhere outside of the sexually oriented business.

E.

All performances shall take place upon a stage, which shall be fixed and immovable. No audience seating shall be permitted within one foot of any edge of the stage. No patron shall be permitted upon the stage or within one foot of any edge of the stage.

F.

Any employee of a sexually oriented business may receive tips from patrons, except that such tips shall be offered by patrons and received by employees by hand to hand only and in no other manner. The one-foot separation requirement of subsection E. above shall not apply to this hand-to-hand tip provision.

(Ord. No. 2010-5, § 3, 8-17-10)

The application for a sexually oriented business' conditional use permit shall constitute consent of the applicant and his or her agents or employees to permit the Leadville Police Department or any other authorized agent of the city to conduct routine inspections of any permitted sexually oriented business during the hours the establishment is conducting business.

(Ord. No. 2010-5, § 3, 8-17-10)

A.

All off-street parking areas and premises entries of sexually oriented businesses shall be illuminated from dusk to closing hours of operation with a lighting system that provides an average maintained horizontal illumination of one foot-candle of light on the parking surface and/or walkways. This required lighting level is established in order to provide sufficient illumination of the parking area and walkways serving the sexually oriented business to help ensure the personal safety of patrons and employees and to reduce the incidence of vandalism and other criminal conduct.

B.

The premises of all sexually oriented businesses, except sexually oriented motion picture theaters, shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place where patrons are permitted access to provide an illumination of not less than two foot-candles of light as measured at the floor level.

C.

Sexually oriented motion picture theaters shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place where patrons are permitted access to provide an illumination of no less than one foot-candle of light as measured at the floor level.

(Ord. No. 2010-5, § 3, 8-17-10)