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HomeMy WebLinkAbout2.a. Adult Use Ordinance4ROSEMOUNT PLANNING COMMISSION Planning Commission Work Session Date: EXECUTIVE SUMMARY February 26, 2013 AGENDA ITEM: Adult Use Ordinance AGENDA SECTION: Discussion AGENDA NO. PREPARED BY: Eric Zweber, Senior Planner 2.a. ATTACHMENTS: City Code Section 3 -8; 11 -4 -16; APPROVED BY• 11- 4 -16 -1; 11 -7 -5. RECOMMENDED ACTION: None, update only. ISSUE With the construction of an interchange along US Highway 52 in Cannon Falls, an adult use will be removed to acquire the additional right -of -way needed for the interchange. An appraiser working for the Minnesota Department of Transportation (MnDOT) called Planning Staff to inquire on other communities' ordinances regarding adult uses to determine the relocation value of the property. When staff reviewed our ordinance, staff discovered that there are some discrepancies and plan on reviewing the regulations over the next few months to determine any necessary revisions. Adult uses are regulated in four places in the City Code, three places in the Zoning Ordinance and once in the Business Regulations. Staff has attached these four City Code sections. Because there are multiple places that the adult uses are mentioned, it is not surprising that there would be discrepancies. The three Zoning Ordinance references state where an adult use would be allowed. The Business Regulations state how the establishment is to operate. The courts normally review adult use regulations as a First Amendment, Free Speech issue and prohibit outright bans on adult uses. Planning staff will be discussing these sections with the Police Chief and the City Attorney to ensure that the Ordinance revisions are as strict as possible while also being legal defensible. Staff will provide proposed revisions to the Planning Commission during the March meeting. RECOMMENDED ACTION Provide comments and questions to staff regarding land use regulations for adult uses. Chapter 8 ADULT USE ESTABLISHMENTS It 3 -8 -1: FINDINGS AND PURPOSE: 3 -8 -2: DEFINITIONS: 3 -8 -3: LOCATION: 3 -8 -4: HOURS OF OPERATION: 3 -8 -5: LICENSING: 3 -8 -6: LICENSE FEE: 3 -8 -7: INVESTIGATION FEE: 3 -8 -8: GRANTING OF LICENSE: 3 -8 -9: PERSONS INELIGIBLE FOR LICENSE: 3 -8 -10: PLACES INELIGIBLE FOR LICENSE: 3 -8 -11: CONDITIONS OF LICENSE: 3 -8 -12: PENALTY: 3 -8 -13: HINDRANCE: 3 -8 -14: CONFLICT OF CHAPTER: 3 -8 -1: FINDINGS AND PURPOSE: Studies conducted by the American Planning Association, the Minnesota attorney general's office and the governments of St. Paul, Minnesota; Phoenix, Arizona; Los Angeles, California; Rochester, Minnesota; Olmstead County, Minnesota; Indianapolis, Indiana; and Seattle, Washington, have investigated the impacts that adult establishments have in their communities. These studies have concluded that adult establishments have negative secondary impacts on surrounding neighborhoods. Those impacts included increased crime rates, lower property values, increased transiency, neighborhood blight and potential health risks. Based on these studies and findings, the city council concludes: A. Minnesota statutes, section 462.357, allows the city to adopt regulations to promote the public health, safety, morals, and general welfare. B. The public health, safety, morals and general welfare will be promoted by the city adopting regulations governing adult establishments. C. Adult establishments have adverse secondary impacts of the type found in the studies referenced in this chapter. D. The adverse impacts caused by adult establishments tend to diminish if adult establishments are governed by location requirements, licensing requirements and health requirements. E. It is not the intent to prohibit adult establishments from having a reasonable opportunity to locate in the city. (Ord. XVI.35, 5 -7 -1996) 3 -8 -2: DEFINITIONS: It The following words and terms when used in this chapter shall have the following meanings unless the context indicates otherwise: ADULT ESTABLISHMENT: Any "adult use" as defined in this section or any business engaged in any of the following activities or which utilizes any of the following business procedures or practices: A. A business that is conducted exclusively for the patronage of adults and as to which minors are specifically excluded from patronage, either by operation of law or by the owners of such business. B. Any business that has a substantial or significant portion of the business or establishment that is devoted to material depicting, exposing, describing, discussing or relating specified sexual activities or specified anatomical areas. C. Any business that has employee(s) or independent contractor(s) working or performing in the business and the employee(s) or independent contractor(s) are nude or partially nude to expose the genitals, pubic region, buttock, female breast(s) below a point immediately above the areola. ADULT USE: An adult use is any of the activities and businesses described below: Adult Body Painting Studio: An establishment or business which provides the service of applying paint or other substance, whether transparent or nontransparent, to the body of a patron when such person is nude. Adult Bookstore: An establishment or business used for barter, rental or sale of items consisting of printed matter, pictures, slides, records, audio tape, videotape, or motion picture film if such business is not open to the public generally but only to one or more classes of the public, excluding any minor by reason of age, or if a substantial or significant portion of such business or establishment is devoted to material distinguished and characterized by an emphasis on the depiction or description of "specified sexual activities" or "specified anatomical areas ". Adult Cabaret: A business or establishment that provides dancing or other live entertainment topatrons if the dancing and live entertainment is distinguished and characterized by an emphasis on the presentation, display, depiction of matter that seeks to evoke, arouse or excite the patron's sexual or erotic feelings or desire. Adult Companionship Establishment: A business or establishment that excludes minors by reason of age, and which provides the service of engaging in or listening to conversation, talk or discussion between an employee of the establishment and a customer, if such service is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas ". Adult Conversation /Rap Parlor: A business or establishment that excludes minors by reason of age, and which provides the services of engaging in or listening to conversation talk, or discussion, if such service is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas ". Adult Health /Sport Club: A health /sport club which excludes minors by reason of age, if such club is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas ". Adult Hotel Or Motel: A hotel or motel from which minors are specifically excluded from patronage and where material is presented which is distinguished and characterized by an emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas ". Adult Massage Parlor: A massage parlor or health club which restricts minors by reason of age, and which provides the services of massage, if such service is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas ". Adult Mini - Motion Picture Theater: A business or establishment with a capacity for less than fifty (50) persons used for presenting material if such material is distinguished and characterized by an emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas ". Adult Modeling Studio: A business or establishment that provides customers figure models who are so provided with the intent of providing sexual stimulation or sexual gratification to suchcustomers and who engage in "specified sexual activities" or "display specified anatomical areas" while being observed, painted, painted upon, sketched, drawn, sculpted, photographed, or otherwise, depicted by such customers. Adult Motion Picture Arcade: Any place to which the public is permitted or invited where coin or slug operated or electronically, electrically or mechanically controlled or operated still or motion picture machines, projectors of other image producing device 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 and characterized by an emphasis on depicting or describing "specified sexual activities" or "specified anatomical areas ". Adult Motion Picture Theater: A motion picture theater with a capacity of fifty (50) or more persons used for presenting material if such theater as a prevailing practice excludes minors by reason of age if such material is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas ". Adult Novelty Business: A business which has as a principal activity the sale of devices which stimulate human genitals or devices which are designed for sexual stimulation. Adult Sauna: A sauna which excludes minors by reason of age, and which provides a steam bathe or heat bathing room used for the purpose of bathing, relaxation or reducing, utilizing steam or hot air as a cleaning, relaxing, or reducing agent, if the service provided by the sauna is distinguished or characterized by an emphasis on "specified sexual activities" or "specified anatomical areas ". Adult Steam Room /Bathhouse Facility: A building or portion of a building used for providing a steam bath or heat bathing room used for the purpose of pleasure, bathing, relaxation, or reducing, utilizing steam or hot air as a cleaning agent if such building or portion of a building restricts minors by reason of age and if the service provided by the steam /bathhouse facility is distinguished and characterized by an emphasis on "specified sexual activities" or "specified anatomical areas ". NUDE OR SPECIFIED ANATOMICAL AREA: A. Less than completely and opaquely covered human genitals, pubic region, buttock, anus, or female breast(s) below a point immediately above the areola; and B. Human male genitals in a discernible turgid state, even if completely and opaquely covered. SPECIFIED SEXUAL ACTIVITIES: A. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral -anal copulation, bestiality, direct physical stimulation or unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, asppism, zooerasty; or B. Clearly depicted human genitals in the state of sexual stimulation, arousal or tumescence; or C. Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or D. Fondling touching nude human genitals, pubic region, buttocks, or female breast(s); or E. Situations involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, fettering, binding or other physical restraint of any such persons; or F. Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or G. Human excretion, urination, menstruation, vaginal or anal irrigation. SUBSTANTIAL OR SIGNIFICANT: For purposes of this section, the phrase "substantial or significant" means that at least one -fourth (/4) of the portion of the floor area of the business (not including storerooms, stock areas, bathrooms, basements or any portion of the business not open to the public) is devoted to items, merchandise or other material that is distinguished or characterized by an emphasis on the depiction or description of "specified sexual activities" or "specified anatomical areas ". (Ord. XVI.35, 5 -7 -1996; amd. Ord. XVI.53, 11 -3 -2003) 3 -8 -3: LOCATION: Licenses for adult use establishments may be granted only for operation on sites where such uses are allowed under Rosemount city zoning ordinance B, section 9.4. (Ord. XVI.35, 5 -7- 1996) 3 -8-4: HOURS OF OPERATION: No "adult establishment" as defined in this chapter may remain open at any time between the hours of one o'clock (1:00) A.M. and eight o'clock (8:00) A.M. on weekdays and Saturdays, and one o'clock (1:00) A.M. and ten o'clock (10:00) A.M. on Sundays. (Ord. XVI.35, 5 -7 -1996) 3 -8 -5: LICENSING: -1 No person shall own or operate an adult establishment without first having secured a license as provided for in this section. The application for an adult establishment license shall be submitted on a form provided by the city and shall include: A. If the applicant is an individual, the name, residence, phone number, and birth date of the applicant. If the applicant is a partnership, the name, residence, phone number, and birth date of each general and limited partner. If the applicant is a corporation, the names, residences, phone numbers, and birth dates of all those persons holding more than five percent (5 %) of the issued and outstanding stock of the corporation. B. The name, address, phone number, and birth date of the operator and manager of such operation, if different from the owners. C. The address and legal description of the premises where the adult establishment is to be located. D. A statement detailing any gross misdemeanor or felony conviction relating to sex offenses, obscenity or the operation of an adult establishment or adult business by the applicant, operator or manager and whether or not the applicant, operator or manager has ever applied for or held a license to operate a similar type of business in other communities. In the case of acorporation, a statement detailing any felony convictions by the owners of more than five percent (5 %) of the issued and outstanding stock of the corporation, and whether or not those owners have ever applied for or held a license to operate a similar type of business in other communities. E. The activities and types of business to be conducted. F. The hours of operation. G. The provisions made to restrict access by minors. H. A building plan of the premises detailing all internal operations and activities. I. Whether the applicant has previously been denied a license of this type by any other government unit. J. The names, street addresses and businesses addresses of three (3) residents of Dakota, Hennepin, Ramsey, Anoka, Washington, Scott or Carver County who are of good moral character and who are not related to the applicant and not holding any ownership in the premises or business, who may be referred to as to the applicant's and /or manager's character. K. Whether all real estate and personal property taxes that are due and payable for the premises to be licensed have been paid, and if not paid, the years and amounts that are unpaid. (Ord. XVI.35, 5 -7 -1996) 3 -8 -6: LICENSE FEE: 41t A. The annual license fee is set forth by city council resolution. B. Each application for a license shall be submitted to the city clerk and payment made to the city. Each application for a license shall be accompanied by payment in full of the required license fee. Upon rejection of any application for a license, the city shall refund the license fee. C. All licenses shall expire on the last day of December in each year. Each license shall be issued for a period of one year, except that if a portion of the license year has elapsed when the application is made, a license may be issued for the remainder of the year for a prorated fee. In computing such fee, any unexpired fraction of a month shall be counted as one month. D. No part of the fee paid by any licensee shall be refunded, except that a prorated portion of the fee shall be refunded in the event of the complete closure of the business and cessation of business activities for any of the following reasons and upon application to the City Clerk within thirty (30) days from the happening of the event, provided that such event occurs more than thirty (30) days before the expiration of the license: 1. Destruction or damage of the licensed premises by fire or other catastrophe. 2. The licensee's illness. 3. The licensee's death. 4. A change in the legal status making it unlawful for licensed business to continue. E. Each application shall contain a provision on the application indicating that any withholding of information or the providing of false or misleading information will be grounds for denial or revocation of a license. Any changes in the information provided on the application or provided during the investigation shall be brought to the attention of the City Clerk by the applicant or licensee. If said changes take place during the investigation, said data shall be provided to the Police Chief or the City Clerk in writing. (Ord. XVI.35, 5 -7 -1996) 3 -8 -7: INVESTIGATION FEE: At the time of original application for a license, the applicant shall deposit one thousand five hundred dollars ($1,500.00) with the City for the investigation fee. The investigation fee for investigations conducted entirely within the State shall be three hundred fifty dollars ($350.00). For investigation conducted outside the State, the City shall be paid the investigation costs in excess of three hundred fifty dollars ($350.00), but not to exceed ten thousand dollars ($10,000.00). Any fees due in excess of the one thousand five hundred dollars ($1,500.00) deposit must be paid before the City Council considers the application. Any unexpended portion of the deposit in excess of three hundred fifty dollars ($350.00) shall be returned to the applicant. (Ord. XVI.35, 5 -7 -1996) 3 -8 -8: GRANTING OF LICENSE: fJ A. The City Clerk and Police Chief, or such persons as they shall designate, shall complete their investigation within thirty (30) days after the City Clerk receives a complete application and all license and investigation fees. B. If, after such investigation it appears that the applicant and the place proposed for the business are eligible for a license under the criteria set forth in this Section, then the license shall be issued by the City Council within thirty (30) days after the investigation is completed. Otherwise, the license shall be denied. C. Each license shall be issued to the applicant only and shall not be transferable to another holder. Each license shall be issued only for the premises described in the application. No license may be transferred to another premises without the approval of the City Council. If the licensee is a partnership or a corporation, a change in the identity of any of the principles of the partnership or corporation shall be deemed a transfer of the license. Any adult establishment existing at the time of the adoption of this Chapter shall be required to obtain an annual license. D. If the license application is denied by the City Council, the applicant may, within fifteen (15) days after denial, commence an action in State or Federal court for the purpose of determining whether the City Council acted properly in denying the application. If an adult establishment is lawfully in existence at the time of the adoption of this Chapter, the adult establishment may continue in business until the court action is completed. Otherwise, the applicant may not commence doing business until the judicial action has been finally resolved. (Ord. XVI.35, 5 -7 -1996) 3 -8 -9: PERSONS INELIGIBLE FOR LICENSE: No license shall be issued or held by any person: A. Under the age of twenty one (21). B. Who is overdue or whose spouse is overdue in his or her payment to the City, County or State of taxes, fees, fines or penalties assessed against them or imposed upon them. C. Who has been convicted or whose spouse has been convicted of a gross misdemeanor or felony or of violating any law of this State or local ordinance relating to sex offenses, obscenity offenses or adult establishments. D. Who is not the proprietor of the establishment for which the license is issued. E. Who has been denied a license by the City or any other Minnesota municipal corporation to operate an adult establishment, or whose license to operate an adult establishmenthas been suspended or revoked within the preceding twelve (12) months, or who is residing with any such person. F. Who has not paid the license and investigation fees required by this Chapter. (Ord. XVI.35, 5- 7 -1996) 3 -8 -10: PLACES INELIGIBLE FOR LICENSE: A. No license shall be granted for adult establishments on any premises where the applicant or any of its officers, agents or employees has been convicted of a violation of this Chapter, or where any license hereunder has been revoked for cause, until one year has elapsed after such conviction or revocation. B. No license shall be granted for any adult establishment which is not in full compliance with the City Code, the City's zoning ordinance, the Building Code, the Fire Code, the City's health regulations, this Chapter and all provisions of State and Federal law. (Ord. XVI.35, 5- 7 -1996) 3 -8 -11: CONDITIONS OF LICENSE: 1 A. Every license shall be granted subject to the following conditions and all other provisions of this Chapter, and of any applicable sections of the City Code, the City's zoning ordinance, the Building Code, the Fire Code, the City's health regulations and all provisions of State and Federal law. B. All licensed premises shall have the license posted in a conspicuous place at all times. C. No minor shall be permitted on the licensed premises. D. Any designated inspection officer of the City shall have the right to enter and inspect the premises of a licensee during business hours. E. Every licensee shall be responsible for the conduct of his /her place of business and shall maintain conditions of order. F. No adult goods, materials, or services shall be offered, sold, transferred, conveyed, given, displayed, or bartered to any minor. (Ord. XVI.35, 5 -7 -1996) 3 -8 -12: PENALTY: A. Any person violating any provision of this Chapter is guilty of a misdemeanor and upon conviction shall be punished not more than the maximum penalty for a misdemeanor as prescribed by law. B. Any violation of this Chapter shall be a basis for the suspension, or revocation of any license granted hereunder. In the event that the City Council proposes to revoke or suspend thelicense, the licensee shall be notified in writing of the basis for such proposed revocation or suspension. The Council shall hold a hearing for the purpose of determining whether to revoke or suspend the license, which hearing shall be within thirty (30) days of such notice. A decision shall be made by the City Council within thirty (30) days after the close of the hearing. C. The City Council shall determine whether to suspend, or revoke a license. Such suspension or revocation shall not be effective until fifteen (15) days after notification of the decision to the licensee. If, within that fifteen (15) days the licensee commences an action in State or Federal court for the purpose of determining whether the City acted properly, the licensee may continue in business until the conclusion of the action. (Ord. XVI.35, 5 -7 -1996) 3 -8 -13: HINDRANCE: Any person hindering the efforts of City officials to investigate possible violations of this Chapter shall be guilty of a misdemeanor. (Ord. XVI.35, 5 -7 -1996) 3 -8 -14: CONFLICT OF CHAPTER: In any case where a provision of this Chapter is found to be in conflict with a provision of any zoning, building, fire, safety or health ordinance or code in the City, the provision which establishes the higher standard for the promotion and protection of the health and safety of the people shall prevail. In any case where a provision of this Chapter is found to be in conflict with a provision of any other ordinance or code of the City existing on the effective date of this Chapter which established a lower standard for the promotion and protection of the health and safety of the property, the provision of this Chapter shall be deemed to prevail. The determination of the applicability of this Chapter in light of the above rules of interpretation shall be made by the City and its determination shall be final. The provisions of this Chapter supplement, but do not supersede the provision of Chapter 2B and 2C of this Title 3. (Ord. XVI.35, 5 -7 -1996) 11 -4 -16: GI GENERAL INDUSTRIAL DISTRICT: t A. Purpose And Intent: The purpose of the GI general industrial district is to provide for the establishment of both light and medium manufacturing uses along with warehouse, repair, and business uses. The GI general industrial district is intended to include uses that may require outdoor and vehicle or trailer storage but exclude heavy industrial uses. The general industrial district is the preferred transition district between the heavy industrial district and may be compatible with residential uses or include relatively higher on site populations, subject to higher performance standards. B. Permitted Uses: Adult uses as defined and regulated in section 11 -7 -5 of this title and title 3, chapter 8 of this code. Commercial use antennas and towers, subject to the requirements of section 11 -9 -6 of this title. Essential services. General building and trade contractor office uses. General repair services, excluding automotive repair and the like. Light or medium manufacturing, processing, and assembly uses. Mineral extraction, subject to requirements of section 11 -10 -4 of this title. Motor freight terminals. Testing, research and laboratory uses. Transit stations /park and ride facilities. Trucking terminals. Warehousing, wholesaling and distribution uses. 11- 4 -16 -1: HI HEAVY INDUSTRIAL DISTRICT: A. Purpose And Intent: The purpose of the HI heavy industrial district is to provide for the establishment of uses that refine and store combustible or explosive materials or blend, store, and distribute chemicals or fertilizer. Such uses may include large unscreened outdoor structures or equipment that cannot be integrated into the building design or large scale outdoor storage. These uses typically generate noise, odor, vibration, illumination, or particulate that may be offensive or obnoxious to adjacent land uses. As a result of these characteristics, these uses require large areas and setbacks as well as significant screening and are not compatible with residential uses or high concentrations of people. Associated accessory, conditional, or interim uses are subject to the site and building standards of the GI district, except as noted below. B. Permitted Uses: The following are permitted uses in the HI heavy industrial district: Adult uses as defined and regulated in section 11 -7 -5 of this title and title 3, chapter 8 of this code. Commercial use antennas and towers, subject to the requirements of section 11 -9 -6 of this title. Essential services. Heavy manufacturing (including large structures or equipment which: 1) refine or store combustible or explosive materials or 2) blend, store and distribute chemicals or fertilizer). 11 -7 -5: ADULT USES ESTABLISHMENT REGULATIONS: A. Findings And Purpose: Findings: Studies conducted by the American Planning Association, the Minnesota attorney general's office and the governments of St. Paul, Minnesota; Phoenix, Arizona; Los Angeles, California; Rochester, Minnesota; Olmstead County, Minnesota; Indianapolis, Indiana; and Seattle, Washington have investigated the impacts that adult establishments have in their communities. These studies have concluded that adult establishments have negative secondary impacts on surrounding neighborhoods. Those impacts included increased crime rates, lower property values, increased transiency, neighborhood blight and potential health risks. Based on these studies and findings, the city council concludes: a. Minnesota statutes, section 462.357, allows the city to adopt regulations to promote the public health, safety, morals, and general welfare. b. The public health, safety, morals and general welfare will be promoted by the city adopting regulations governing adult establishments. c. Adult establishments have adverse secondary impacts of the type found in the studies referenced in this section. d. The adverse impacts caused by adult establishments tend to diminish if adult establishments are governed by location requirements, licensing requirements and health requirements. e. It is not the intent to prohibit adult establishments from having a reasonable opportunity to locate in the city. 2. Definitions: For the purpose of this section, phrases and words shall have the meaning given them in section 3 -8 -2 of this code. (Ord. B -60, 5 -17 -1996) 3. Permitted Locations: Adult use establishments as defined and regulated in title 3, chapter 8 of this code are permitted in an overlay district which is established in the general industrial (GI) zone east of Akron Avenue in the city of Rosemount. Adult uses will conform to the general industrial (GI) zone standards. Adult use establishments may be located within the overlay district provided they meet the following criterion: adult use establishments may not be located within five hundred feet (500') of a residential structure, or within one thousand feet (1,000') from the property line of a park, school, church, library, commercial daycare center, cemetery, or within one thousand feet (1,000') of another adult use establishment. (Ord. B -60, 5 -17 -1996; amd. Ord. B-174,10-17-2006)