(a)

Purpose. It is the purpose of this article to regulate sexually oriented businesses in order to promote the health, safety, and general welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses within the city. The provisions of this article have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor effect of this article 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. Neither is it the intent nor effect of this article to condone or legitimize the distribution of obscene material.

(b)

Findings and rationale. Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to the city planning commission and City Council, and on findings, interpretations, and narrowing constructions incorporated in the cases ofCity of Littleton v.Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004);City of Los Angeles v.Alameda Books, Inc., 535 U.S. 425 (2002);City of Erie v. Pap's A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986),Young v.American Mini Theatres, 427 U.S. 50 (1976), Barnes v.Glen Theatre, Inc., 501 U.S. 560 (1991); California v.LaRue, 409 U.S. 109 (1972); N.Y. State Liquor Authority v.Bellanca, 452 U.S. 714 (1981); Daytona Grand, Inc. v.City of Daytona Beach, 2007 LEXIS 15361 (11th Cir. 2007); and

Deja Vu of Nashville, Inc. v.Metropolitan Gov't of Nashville and Davidson County, 2006 WL 2882969 (6th Cir. 2006); Sensations, Inc. v.City of Grand Rapids, No. 1:06-cv-300, R. 73, Opinion (W.D. Mich. Oct. 23, 2006); 729, Inc. v.Kenton County, 2006 WL 2842884 (E.D. Ky. 2006);Deja Vu of Cincinnati, L.L.C. v.Union Township Bd. Of Trustees, 411 F.3d 777 (6th Cir. 2005) (en banc); Fantasy Ranch, Inc. v.City of Arlington, 459 F.3d 546 (5th Cir. 2006); City of Chicago v.Pooh Bah Enterprises, Inc., 2006 WL 2827608 (Ill. 2006); Sensations, Inc. v.City of Grand Rapids, 2006 WL 2504388 (W.D. Mich. 2006); Andy's Restaurant & Lounge, Inc. v.City of Gary, 2006 WL 2873027 (7th Cir. 2006); 181 South, Inc. v.Fischer, 454 F.3d 228 (3rd Cir. 2006); Bronco's Entertainment, Ltd. v.Charter Twp. of Van Buren, 421 F.3d 440 (6th Cir. 2005); Charter Twp. of Van Buren v.Garter Belt, Inc., 258 Mich. App. 594 (2003); Jott, Inc. v.Clinton Twp., 224 Mich. App. 513 (1997); Michigan ex rel. Wayne County Prosecutor v.Dizzy Duck, 449 Mich. 353 (1995); Z.J. Gifts D-2, L.L.C. v.City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc. v.City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Kentucky Restaurant Concepts, Inc. v.City of Louisville, 209 F. Supp. 2d 672 (W.D. Ky. 2002);Restaurant Ventures v. Lexington-Fayette Urban County Gov't, 60 S.W.3d 572 (Ky. Ct. App. 2001); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Deja Vu of Nashville, Inc., et al. v.Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001);Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); Ctr. for Fair Public Policy v.Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Bigg Wolf Discount Video Sales, Inc. v.Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003); Kentucky Restaurant Concepts, Inc. v.Metro Gov't, Case No. 04-CI-01967 (Jefferson Circuit Court, Summary Judgment Order, Dec. 14, 2004); DLS, Inc. v.City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Brandywine, Inc. v.City of Richmond, 359 F.3d 830 (6th Cir. 2004);Currence v. City of Cincinnati, 28 Fed. Appx. 438 (6th Cir. Jan. 24, 2002); Broadway Books v.Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v.City of Newport, 830 F. Supp. 378 (E.D. Ky. 1993); Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998); Bamon Corp. v.City of Dayton, 923 F.2d 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994); O'Connor v. City and County of Denver, 894 F.2d 1210 (10th Cir. 1990); Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710 (N.D. Ohio 1998); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); In re Tennessee Public Indecency Statute, 172 F.3d 873 (6th Cir. Jan. 13 1999)(table); and based upon reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona - 1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Kennedale, Texas - 2005; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; New York, New York Times Square - 1994; and the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota),

The city council finds:

(1)

Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation.

(2)

Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.

(3)

Each of the foregoing negative secondary effects constitutes a harm which the city has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the city's rationale for this ordinance, exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the city's interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the city. The city finds that the cases and documentation relied on in this ordinance are reasonably believed to be relevant to said secondary effects.

(Ord. No. 702, § 1(Intent), 8-18-2008)

For purposes of this article, the words and phrases defined in the sections hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context.

1.

"Adult bookstore or adult video store" means a commercial establishment which, as one of its principal business activities, offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas."

A "principal business activity" exists where the commercial establishment:

(a)

Has a substantial portion of its displayed merchandise which consists of said items, or

(b)

Has a substantial portion of the wholesale value of its displayed merchandise which consists of said items, or

(c)

Has a substantial portion of the retail value of its displayed merchandise which consists of said items, or

(d)

Derives a substantial portion of its revenues from the sale or rental, for any form of consideration of said items, or

(e)

Maintains a substantial section of its interior business space for the sale or rental or said items; or

(f)

Maintains an "adult arcade," which means 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 regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting "specified sexual activities" or specified "anatomical areas."

2.

"Adult cabaret" means a nightclub, bar, juice bar, restaurant, bottle club, or other commercial establishment, whether or not alcoholic beverages are served, which regularly features persons who appear semi-nude.

3.

"Adult motion picture theater" means a commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of "specified sexual activities" or "specified anatomical areas" are regularly shown to more than five persons for any form of consideration.

4.

"Characterized by" means describing the essential character or quality of an item. As applied in this article, no business shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.

5.

"City" means City of Petoskey, Michigan.

6.

"Employ, employee, and employment" describe and pertain to any person who performs any service on the premises of a sexually oriented business, on a full time, part time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.

7.

"Establish or establishment" shall mean and include any of 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; or

(c)

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

8.

"Influential interest" means any of the following:

(1)

The actual power to operate the sexually oriented business or control the operation, management or policies of the sexually oriented business or legal entity which operates the sexually oriented business,

(2)

Ownership of a financial interest of 30 percent or more of a business or of any class of voting securities of a business, or

(3)

Holding an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, etc.) in a legal entity which operates the sexually oriented business.

9.

"Nudity or a state of nudity" means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola.

10.

"Operate or cause to operate" shall mean to cause to function or to put or keep in a state of doing business. "Operator" means any person on the premises of a sexually oriented business who operates the business or is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating or causing to be operated a sexually oriented business regardless of whether that person is an owner, part owner, or licensee of the business.

11.

"Person" shall mean individual, proprietorship, partnership, corporation, association, or other legal entity.

12.

"Premises" means the real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a sexually oriented business license.

13.

"Regularly" means and refers to the consistent and repeated doing of the act so modified.

14.

"Semi-nude or state of semi-nudity" means the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.

15.

"Sexual device" means any three dimensional object designed and marketed for stimulation of the male or female human genitals, anus, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos, vibrators, penis pumps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.

16.

"Sexual device shop" means a commercial establishment that regularly features sexual devices. Nothing in this definition shall be construed to include any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services, nor shall this definition be construed to include commercial establishments which do not restrict access to their premises by reason of age.

17.

"Sexual encounter center" shall mean a business or commercial enterprise that, as one of its principal business purposes, purports to offer for any form of consideration, physical contact in the form of wrestling or tumbling between persons of the opposite sex when one or more of the persons is semi-nude.

18.

"Sexually oriented business" means an "adult bookstore or adult video store," an "adult cabaret," an "adult motion picture theater," a "sexual device shop," or a "sexual encounter center."

19.

"Specified anatomical areas" means and includes:

(a)

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

(b)

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

20.

"Specified criminal activity" means any of the following specified offenses, as amended from time to time, for which less than eight years elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date:

(a)

Criminal sexual conduct (MCL 750.520a—750.520g), child sexually abusive activity (MCL 750.145c), computer crimes against children (MCL 750.145d(1)(a));

(b)

Prostitution-related offenses (MCL 750.448—750.449a);

(c)

Offenses related to obscenity (MCL 752.365) and material harmful to minors (MCL 750.142—750.143);

(d)

Indecent exposure (MCL 750.335a);

(e)

Any attempt, solicitation, or conspiracy to commit one of the foregoing offenses;

(f)

Any offense in another jurisdiction that, had the predicate act(s) been committed in Michigan, would have constituted any of the foregoing offenses.

21.

"Specified sexual activity" means any of the following:

(a)

Intercourse, oral copulation, masturbation or sodomy; or

(b)

Excretory functions as a part of or in connection with any of the activities described in (a) above.

22.

"Substantial" means at least 30 percent of the item(s) so modified.

23.

"Viewing room" shall mean the room, booth, or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video reproduction.

(Ord. No. 702, § 1(2800), 8-18-2008)

(a)

Sexually oriented businesses shall not be required to obtain a special conditional use permit.

(b)

It shall be unlawful to establish, operate, or cause to be operated a sexually oriented business in the City of Petoskey in any zoning district other than the B3, B-3B, I1 and I2 zoning districts.

(c)

No sexually oriented business may be established, operated, or maintained within any PUD district that includes residential uses.

(d)

No sexually oriented business may be established, operated, or maintained within 500 feet of a residential zoning district with residential or public park uses per article III, section 300.

(e)

No sexually oriented business may be established, operated, or maintained within 500 feet of a part of any PUD district which is planned residential.

(f)

No sexually oriented business may be established, operated, or maintained within 1,000 feet from any recognized house of worship, public library, or public or private educational facilities serving persons age 17 or younger; nor shall any sexually oriented business be established, operated, or maintained within 500 feet of any state licensed day care facility.

(g)

No sexually oriented business may be established, operated, or maintained within 1,000 feet of a parcel occupied by any other sexually oriented business.

(h)

For the purpose of this section, measurements shall be made in a straight line in all directions without regard to intervening structures or objects, from the closest part of any structure, including signs and roof overhangs, used in conjunction with the sexually oriented business to the closest point on a property boundary or zoning district identified in subsections (e), (f), (g), and (h) above.

(i)

No sexually oriented business may be established, operated, or maintained in the City of Petoskey if a person with an influential interest in the business has been convicted of or pled guilty or nolo contendere to a specified criminal activity, as defined in this article.

(j)

No sexually oriented business may be established, operated, or maintained in the City of Petoskey if a person with an influential interest in the business has, in the previous five years, had an influential interest in another sexually oriented business that (at a time during which the applicant had the influential interest in the other sexually oriented business) was declared by a court of law to be a nuisance.

(Ord. No. 702, § 1(2801), 8-18-2008)

(a)

Nothing contained in this article is intended, or shall be construed, to permit or authorize activities which are unlawful under state law or municipal ordinance. It is unlawful and a violation of this article for an operator to knowingly or intentionally violate the provisions of this article or to allow, either knowingly or intentionally, an employee or a patron to violate the provisions of this article. It shall be a defense to prosecution that the person prosecuted was powerless to prevent the violation.

(b)

No person shall knowingly or intentionally, in a sexually oriented business, appear before a patron or patrons in a state of nudity, regardless of whether such public nudity is expressive in nature.

(c)

No employee shall knowingly or intentionally, in a sexually oriented business, appear within view of any patron in a semi-nude condition unless the employee, while semi-nude, shall be and remain at least six feet from all patrons and on a fixed stage at least 18 inches from the floor in a room of at least 600 square feet.

(d)

A sexually oriented business which exhibits on the premises, through any mechanical or electronic image-producing device, a film, video cassette, digital video disk, or other video reproduction characterized by an emphasis on the display of specified sexual activities or specified anatomical areas shall comply with the following requirements: The interior of the premises shall be configured in such a manner that there is an unobstructed view from an operator's station of every area of the premises, including the interior of each viewing room but excluding restrooms, to which any patron is permitted access for any purpose. An operator's station shall not exceed 32 square feet of floor area. If the premises has two or more operator'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 operator's stations. The view required in this paragraph must be by direct line of sight from the operator's station. It is the duty of the operator to ensure that at least one employee is on duty and situated in an operator's station at all times that any patron is on the portion of the premises monitored by that operator station. It shall be the duty of the operator, and it shall also be the duty of any employees present on the premises, to ensure that the view area specified in this paragraph remains unobstructed by any doors, curtains, walls, merchandise, display racks or other materials or enclosures at all times that any patron is present on the premises.

(e)

Sexually oriented businesses that do not have stages or interior configurations which meet at least the minimum requirements of this section shall be given 180 days from the effective date of this ordinance to comply with the stage and building requirements of this section. During said 180 days, any employee who appears within view of any patron in a semi-nude condition shall nevertheless remain, while semi-nude, at least six feet from all patrons.

(f)

No employee who regularly appears within view of patrons in a semi-nude condition in a sexually oriented business shall knowingly or intentionally touch a patron or the clothing of a patron in a sexually oriented business.

(g)

No operator shall allow or permit a sexually oriented business to be or remain open between the hours of 12:00 midnight and 6:00 a.m. on any day.

(h)

No person shall knowingly or intentionally sell, use, or consume alcoholic beverages on the premises of a sexually oriented business.

(i)

No person shall knowingly allow a person under the age of 18 years on the premises of a sexually oriented business.

(j)

Scienter. This section does not impose strict liability. Unless a culpable mental state is otherwise specified herein, a showing of a knowing or reckless mental state is necessary to establish a violation of a provision of this section. Notwithstanding anything to the contrary, for the purposes of this section, an act by an employee shall be imputed to the sexually oriented business for purposes of finding a violation of this section only if an officer, director, or general partner, or a person who managed, supervised, or controlled the operation of the business premises, knowingly or recklessly allowed such act to occur on the premises. It shall be a defense to liability that the person to whom liability is imputed was powerless to prevent the act.

(k)

Sanctions; equitable remedies. Any person, business, or entity violating or refusing to comply with any provisions of this section shall be responsible for a municipal civil infraction. The sanction for a violation of this section which is a municipal civil infraction shall be a civil fine in the amount provided in Ordinance Number 674, as amended by the city council from time to time, which is adopted by reference, plus costs, damages, expenses, and other sanctions as authorized under chapter 87 of 1961 PA 236, as amended. Each day that a violation is permitted to exist or occur, and each separate occurrence, shall constitute a separate offense. Further, any premises, building, dwelling, or other structure in which a sexually oriented business, as defined in this article, is repeatedly operated or maintained in violation of the provisions of this article shall constitute a public nuisance and shall be subject to civil abatement proceedings initiated by the City of Petoskey in a court of competent jurisdiction. Each day that a violation is permitted to exist or occur shall constitute a separate operation or maintenance of the violation. Notwithstanding the foregoing, the city may employ any remedy available at law or in equity to prevent or remedy a violation of any provision of this article.

(Ord. No. 702, § 1(2802), 8-18-2008)

State Law reference— Authority to make violation municipal civil infraction, MCL 125.3407.

This article and each section and provision of said article hereunder, are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said article, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Should any procedural aspect of this article be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this article.

(Ord. No. 702, § 1(2803), 8-18-2008)