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PROPOSED ORDINANCE NO. 99-52
ORDINANCE NO. __4415___
AN ORDINANCE REGULATING SEXUALLY ORIENTED BUSINESSES
AND ITS EMPLOYEES; PROVIDING ADDITIONAL HEALTH AND SAFETY REGULATIONS
FOR SEXUALLY ORIENTED BUSINESSES; AND PROVIDING FOR THE REGULATION
OF NEWSRACKS
IN THE CITY OF MISHWAKA, INDIANA
WHEREAS, the Indiana Home Rule Statute authorizes municipalities
to adopt ordinances to protect the health, welfare and safety of
its residents and to preserve the peace, order and safety of its
community; and
WHEREAS, sexually oriented businesses within the corporate limits
of the City of Mishawaka require special supervision from local
public safety and health agencies in order to protect and preserve
the health, safety and welfare of the patrons of such businesses
as well as citizens of Mishawaka; and
WHEREAS, the Common Council has considered the decisions of the
United States Supreme Court regarding local regulation of sexually
oriented businesses, including but not limited to, Young v. American
Mini Theatres, Inc., 427 U.S. 50 (1976) reh. denied 429 U.S. 873;
Renton v. Playtime Theatres, 475 U.S. 41 (1986) reh. denied 475
U.S. 1132; FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); and Barnes
v. Glen Theatre, 501 U.S. 560 (1991); and City of National City
v. Wiener, et al, 3 Cal.4th 832 (1993). Topanga Press, Inc., et
al v. City of Los Angeles, 939 F.2d 1524 (1993); and
WHEREAS, the Common Council has determined that location restrictions
alone do not adequately protect the health, safety and general welfare
of Mishawaka residents and, thus, believes that certain requirements
with respect to the ownership and operation of sexually oriented
businesses is in the public interest; and
WHEREAS, the Common Council further finds that like those restrictions
placed on the sale and consumption of alcohol and outside advertising
limitations, restricted hours of operation will further prevent
the adverse secondary effects of sexually oriented business; and
WHEREAS, it is not the intent of this ordinance to suppress any
speech activities protected by the First Amendment to the United
States Constitution or Article 1, §9 of the Indiana State Constitution,
but to enact a content-neutral ordinance that addresses the adverse
secondary effects of sexually oriented businesses; and
WHEREAS, the Common Council does not intend to condone or legitimize
the distribution of obscene material, and the Council recognizes
that state law prohibits the distribution of obscene materials and
encourages state enforcement officials to prosecute such illegal
activities in Mishawaka; and
WHEREAS, the Common Council and staff find that the live entertainment
presented by some sexually oriented business establishments involve
a considerable amount of bodily contact between patrons and performers,
including physical contact while giving and receiving gratuities,
and hugging, kissing, and sexual fondling of performers and patrons.
Many sexually oriented businesses offer "sofa/couch" or "straddle"
dancing. In these "dances", the performers sometimes do such things
as sit in the patron's lap; place their breasts against the patron's
face; while physical contact is maintained, gyrate in such a manner
as to simulate sexual intercourse; allow patrons to suckle their
breasts; breathe heavily into a patron's groin area; and bite and
gnaw at, as well as fondle, the genitals of patrons. Performers,
both during the semi-private dances and on a stage, have pulled
patrons' faces into their vaginal areas, or performed a 'whipped
cream' dance wherein patrons were allowed to spoon feed themselves
with whipped cream that had been spread on the breasts, vaginal,
and anal areas of the performer. In other instances, male patrons
have placed a peeled banana between their legs while female performers
have eaten the banana. Some of this conduct would violate the State
Penal Code and the City's Municipal Code, which prohibit, among
other things, the public fondling of genitals, Indiana Code 35-45-4-1
and 35-45-4-2. Although no actual sexual intercourse may be involved,
contact titillation provided in exchange for a gratuity constitutes
prostitution, which is in violation of Indiana Code § 35-45-4-2;
and
WHEREAS, the Common Council and staff find that a number of courts
have upheld distance limitations between performers and patrons,
prohibitions against physical contact between performers and patrons,
and direct payment and receipt of gratuities between performers
and patrons at sexually oriented business establishments that provide
live entertainment: BSA, Inc. v. King County, 804 F.2d 1104, 1110-11
(9th Cir. 1986) (six feet); Kev, Inc. v. Kitsap County, 793 F.2d
1091 (9th Cir. 1986) (ten feet); Zanganeh v. Hymes, 844 F. Supp.
1087, 1091 (D.Md. 1994) (six feet); T-Marc, Inc. v. Pinellas County,
804 F. Supp. 1500, 1506 (M.D.Fla. 1992) (three) feet), DLS, Inc.,
v. City of Chatanooga, 894 F. Supp. 1140 (E.D. Tenn. 1995) (six
feet and prohibiting direct payment and receipt of gratuities);
Parker v. Whitfield County, 463 S.E.2d 116 (Ga. 1995) (prohibiting
tipping and contact between dancers and patrons); and Hang On, Inc.
v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995) (aff’d prohibition
on touching or any contact between dancers and patrons); and
WHEREAS, the Common Council and staff recognize that preventing
prostitution and the spread of sexually transmitted diseases are
clearly within the scope of its police powers. Southeastern Promotions,
Inc. v. Conrad, 341 F. Supp. 465, 477 (E.D. Tenn. 1972), rev'd on
other grounds, 420 U.S. 546 (1975); and
WHEREAS, the Common Council and staff believe that prohibiting
physical contact between performers and patrons at a sexually oriented
business establishment, prohibiting performers from soliciting payment
of gratuities from patrons, and the direct payment of gratuities
to performers by patrons are a reasonable and effective means of
addressing these legitimate governmental interests. It is not the
intent of the City to place any impermissible burden on any constitutionally
protected expression or expressive conduct by the enactment or enforcement
of such regulations.
NOW, THEREFORE, THE COMMON COUNCIL OF THE CITY OF MISHAWAKA DOES
HEREBY ORDAIN AS FOLLOWS:
Section 1. The following words, phrases and figures regulating
sexually oriented businesses and its employees, providing additional
health and safety regulations for sexually oriented businesses,
and providing for the regulation of newsracks in the City of Mishawka,
Indiana is hereby adopted and incorporated within the Municipal
Code of the City of Mishawaka, Indiana:
SEXUALLY ORIENTED BUSINESS ORDINANCE
§125.01 PURPOSE AND INTENT;.
It is the purpose of this ordinance to regulate sexually oriented
businesses to promote the health, safety, morals and general welfare
of the citizens of the City, and to establish reasonable and uniform
regulations to prevent deleterious effects of sexually oriented
businesses within the City. The provisions of this Ordinance have
neither the purpose nor effect of imposing a limitation or restriction
on the content of any communicative materials, including sexually
oriented materials. Similarly, it is not the intent nor effect of
this Ordinance to restrict or deny access by adults to sexually
oriented materials protected by the First Amendment to the United
States Constitution or the Indiana State Constitution, or to deny
access by the distributors and exhibitors of sexually oriented entertainment
to their intended market. Neither is it the intent or effect of
this Ordinance to in any way condone or legitimize the distribution
of obscene or material harmful to minors.
§125.02 DEFINITIONS.
For the purposes of this division, certain terms and words are
defined as follows:
A. Sexually oriented businesses" are those businesses defined
as follows:
1. "Adult arcade" means an establishment where, for any form
of consideration, one or more still or motion picture projectors,
slide projectors, or similar machines, or other image producing
machines, for viewing by five or fewer persons each, are regularly
used to show 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".
2. "Adult Bookstore", "Adult Novelty Store" or "Adult Video Store"
means a commercial establishment which has as a significant or
substantial portion of its stock-in-trade or derives a significant
or substantial portion of its revenues or devotes a significant
or substantial portion of its interior business or advertising
to the sale or rental, for any form of consideration, of any one
or more of the following:
a. Books, magazines, periodicals or other printed matter, or
photographs, films, motion pictures, video cassettes, slides,
or other visual representations which are characterized by the
depiction or description of "specified sexual activities" or
"specified anatomical areas";
b. Instruments, devices, or paraphernalia which are designed
for use or marketed primarily for stimulation of human genital
organs or for sadomasochistic use or abuse of themselves or
others.
c. An establishment may have other principal business purposes
that do not involve the offering for sale rental or viewing
of materials depicting or describing "specified sexual activities"
or "specified anatomical areas", and still be categorized as
adult bookstore, adult novelty store, or adult video store.
Such other business purposes will not serve to exempt such establishments
from being categorized as an adult bookstore, adult novelty
store or adult video store so long as one of its principal business
purposes is offering for sale or rental, for some form of consideration,
the specified materials which depict or describe "specified
anatomical areas" or "specified sexual activities."
3. "Adult cabaret" means a nightclub, bar, restaurant "bottle
club", or similar commercial establishment, whether or not alcoholic
beverages are served, which regularly features: (a) persons who
appear nude or in a state of nudity or semi-nude; (b) live performances
which are characterized by the exposure of "specified anatomical
areas" or by "specified sexual activities", or (c) 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".
4. "Adult motel" means a motel, hotel or similar commercial establishment
which: (a) offers public accommodations, for any form of consideration,
which provides patrons with closed-circuit television transmissions,
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"
and which advertises the availability of this sexually oriented
type of material by means of a sign visible from the public right-of-way,
or by means of any off-premises advertising including but not
limited to, newspapers, magazines, pamphlets, or leaflets, radio
or television, or (b) offers a sleeping room for rent for a period
of time less than ten (10) hours; or (c) allows a tenant or occupant
to sub-rent the sleeping room for a time period of less than ten
(10) hours.
5. "Adult motion picture theater" means a commercial establishment
where films, motion pictures, video cassettes, slides or similar
photographic reproductions which are characterized by the depiction
or description of "specified sexual activities" or "specified
anatomical areas" are regularly shown for any form of consideration.
6. "Adult theater" means a theater, concert hall, auditorium,
or similar commercial establishment which, for any form of consideration,
regularly features persons who appear in a state of nudity or
live performances which are characterized by exposure of "specified
anatomical areas" or by "specified sexual activities."
7. "Escort" means a person who, for any form of consideration,
agrees or offers to act as a companion, guide, or date for another
person, or who agrees or offers to privately model lingerie or
to privately perform a striptease for another person.
8. "Escort Agency" means a person or business association who
furnishes, offers to furnish, or advertises to furnish escorts
as one of its primary business purposes for a fee, tip, or other
consideration.
9. "Massage parlor" means any place where, for any form of consideration
or gratuity, massage, alcohol rub, administration of fomentations,
electric or magnetic treatments, or any other treatment or manipulation
of the human body which occurs as a part of or in connection with
"specified sexual activities", or where any person providing such
treatment, manipulation, or service related thereto, exposes his
or her "specified anatomical areas". The definition of sexually
oriented businesses shall not include the practice of massage
in or by any licensed hospital; nor by a licensed physician, surgeon,
chiropractor or osteopath; nor by any nurse or technician working
under the supervision of a licensed physician, surgeon, chiropractor
or osteopath; nor by trainers for any amateur, semiprofessional
or professional athlete or athletic team or school athletic program;
nor by any person or entity licensed pursuant to Chapter 115.
10. "Nude Model Studio" means any place where a person, who regularly
appears in a state of nudity or displays "specified anatomical
areas" for money or any form of consideration and is to be observed,
sketched, drawn, painted, sculptured, photographed, or similarly
depicted by other persons.
11. "Sexual encounter establishment" means a business or commercial
establishment that, as one of its primary business purposes offers
for any form of consideration a place where two or more persons
may congregate, associate, or consort for the purpose of engaging
in "specified sexual activities" or the exposure of "specified
anatomical areas" or activities when one or more of the persons
is in a state of nudity or semi-nude. The definition of sexually
oriented businesses shall not include an establishment where a
medical practitioner, psychologist, psychiatrist, or similar professional
person licensed by the state engages in medically approved and
recognized sexual therapy.
B. "Employee" means a person who works or performs in and/or
for a sexually oriented business, regardless of whether or not
said person is paid a salary, wage or other compensation by
the operator of said business.
C. "Establishment" means and includes any of the following:
1. The opening or commencement of any such business as a new
business;
2. The conversion of an existing business, regardless of whether
it currently exists as a sexually oriented business, to any of
the sexually oriented businesses defined in this chapter;
3. The addition of any of the sexually oriented businesses defined
in this chapter to any other existing sexually oriented business;
or
4. The relocation of any such sexually oriented business.
D. "Nudity" or "State of Nudity" means: (a) the appearance of human
bare buttock, anus, male or female genitals, or the areola or nipple
of the female breast; or (b) a state of dress which fails to opaquely
and fully cover a human buttocks, anus, male or female genitals,
pubic region or areola or nipple of the female breast.
E. "Operator" means and includes the owner, permit holder, custodian,
manager, operator or person in charge of any permitted or licensed
premises.
F. "Permitted or Licensed Premises" means any premises that requires
a license and/or permit and that is classified as a sexually oriented
business.
G. "Permittee and/or Licensee" means a person in whose name a permit
and/or license to operate a sexually oriented business has been
issued, as well as the individual listed as an applicant on the
application for a permit and/or license.
H. "Person" means an individual, proprietorship, partnership, corporation,
association, or other legal entity.
I. "Public building" means any building owned, leased or held by
the United States, the state, the county, the city, any special
district, school district, or any other agency or political subdivision
of the state or the United States, which building is used for governmental
purposes.
J. "Public park" or "recreation area" means public land which has
been designated for park or recreational activities including, but
not limited to, a park, playground, nature trails, swimming pool,
reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle
paths, open space, wilderness areas, or similar public land within
the city which is under the control, operation, or management of
the city park and recreation authorities.
K. "Religious institution" means any church, synagogue, mosque,
temple or building which is used primarily for religious worship
and related religious activities.
L. "Residential District or Use" means a single family, duplex,
townhouse, multiple family, or mobile home park or subdivision as
defined in the Mishawaka Zoning Ordinance.
M. "School" means any public or private educational facility including,
but not limited to, child day care facilities, nursery schools,
preschools, kindergartens, elementary schools, primary schools,
intermediate schools, junior high schools, middle schools, high
schools, vocational schools, secondary schools, continuation schools,
special education schools, junior colleges, colleges and universities.
The term "School" includes the school grounds, but does not include
facilities used primarily for another purpose and only incidentally
as a school.
N. "Semi-Nude" means a state of dress in which clothing covers
no more than the genitals, pubic region, and areola of the female
breast, as well as portions of the body covered by supporting straps
or devices.
O. "Sexually Oriented Business" means an adult arcade, adult bookstore,
adult novelty shop, adult video store, adult cabaret, adult motel,
adult motion picture theater, adult theater, massage parlor, sexual
encounter establishment, escort agency or nude model studio.
P. "Specified Anatomical Areas" means and includes any of the following:
1. Less than completely and opaquely covered human genitals,
pubic region, buttocks, anus, or female breasts below a point
immediately above the top of the areola; or
2. Human male genitals in a discernibly turgid state, even if
completely and opaquely covered.
Q. "Specified Sexual Activities" means and includes any of the
following:
1. The fondling or other intentional touching of human genitals,
pubic region, buttocks, anus, or female breasts;
2. Sex acts, normal or perverted, actual or simulated, including
intercourse, oral copulation, or sodomy;
3. Masturbation, actual or simulated; or
4. Human genitals in a state of sexual stimulation, arousal or
tumescence;
5. Excretory functions as part of or in connection with any of
the activities set forth in subdivisions (1) through (4) of this
subsection.
R. "Substantial Enlargement of a Sexually Oriented Business" means
increase in the floor areas occupied by the business by more than
15%, as the floor areas exist on the date this Ordinance takes effect.
S. "Transfer of Ownership or Control of a Sexually Oriented Business"
means and includes any of the following:
1. The sale, lease or sublease of the business;
2. The transfer of securities which constitute a controlling
interest in the business, whether by sale, exchange or similar
means;
3. The establishment of a trust, gift or other similar legal
devise which transfers ownership or control of the business, except
for transfer by bequest or other operation of law upon the death
of a person possessing the ownership or control.
§125.03 PERMIT REQUIRED.
A. No person shall conduct, maintain, operate, or cause to be conducted,
maintained, or operated, any sexually oriented business within the
corporate limits of the city without first being licensed under
this chapter.
B. The Mishawaka Board of Public Works and Safety, or its designee,
is responsible for granting, denying, revoking, renewing, suspending,
and canceling sexually oriented business permits for proposed or
existing sexually oriented businesses. The Mishawaka Board of Public
Works and Safety, or its designee, is also responsible for ascertaining
whether a proposed sexually oriented business for which a permit
is being applied complies with all applicable zoning laws and/or
regulations now in effect or as amended or enacted subsequent to
the effective date of this Ordinance in the City and the City’s
Comprehensive Plan.
C. The Mishawaka Police Department shall be is responsible for
providing information on whether an applicant has been convicted
of a specified criminal act during the time period set forth.
D. The City's Code Enforcement Department shall be responsible
for inspecting a proposed, permitted or non-permitted sexually oriented
business in order to ascertain whether it is in compliance with
applicable statutes and ordinances.
E. An application for a permit must be made on a form provided
by the Mishawaka Board of Public Works and Safety. Any person desiring
to operate a sexually oriented business shall file with the City
an original and two copies of a sworn permit application on the
standard application form supplied by the Mishawaka Board of Public
Works and Safety, or its designee.
F. The completed application shall contain the following information
and shall be accompanied by the following documents:
If the applicant is:
a. an individual, the individual shall state his/her legal name
and any aliases and submit satisfactory proof that he/she is eighteen
years of age;
b. a partnership, the partnership shall state its complete name,
and the names of all partners, whether the partnership is general
or limited, and a copy of the partnership agreement, if any;
c. a corporation, the corporation shall state its complete name,
the date of its incorporation, evidence that the corporation is
in good standing under the laws of the State of Indiana, the names
and capacity of all officers, directors and principal stockholders,
and the name of the registered corporate agent and the address
of the registered office for service of process.
If the applicant intends to operate the sexually oriented business
under a name other than that of the applicant; he must state
1) the sexually oriented business's fictitious name and 2) submit
the required Indiana registration documents.
Whether the applicant or any of the other individuals listed
in the application has, within the two (2) or five (5) year
period as specified in §125.05 immediately preceding the date
of the application, been convicted of a specified criminal act,
and, if so, the specified criminal act involved, and the date
and place of conviction.
Whether the applicant or any of the other individuals listed
in the application has had a previous permit under this Ordinance,
or other similar sexually oriented business ordinances from
another city or county denied, suspended or revoked, including
the name and location of the sexually oriented business for
which the permit was denied, suspended or revoked, as well as
the date of the denial, suspension or revocation, and whether
the applicant or any other individuals listed in the application
has been a partner in a partnership or an officer, director
or principal stockholder of a corporation that is permitted
under this Ordinance whose permit has previously been denied,
suspended or revoked, including the name and location of the
sexually oriented business for which the permit was denied,
suspended or revoked as well as the date of denial, suspension
or revocation.
Whether the applicant or any other individual listed in the
application holds any other permits and/or licenses under this
Ordinance or other similar sexually oriented business ordinance
from another city, county, or state and, if so, the names and
locations of such other permitted businesses. The single classification
of permit for which the applicant is filing.
The location of the proposed sexually oriented business, including
a legal description of the property, street address, and telephone
number(s), if any.
The applicant's mailing address and residential address.
A recent photograph of the applicant(s).
The applicant's driver's license number, Social Security number,
and/or his/her state or federally issued tax identification
number.
A sketch or diagram showing the configuration of the premises,
including a statement of total floor space occupied by the business.
The sketch or diagram need not be professionally prepared, but
it 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 (6) inches.
A current certificate and straight-line drawing prepared within
thirty (30) days prior to application by a State of Indiana
registered land surveyor depicting the property lines and the
structures containing any established existing uses regulated
by this Ordinance within 1,000 feet of the property to be certified;
the property lines of any established religious institution/synagogue,
school, or public park or recreation area within 1,000 feet
of the property to be certified; and the property lines of any
residentially zoned area or residential property within 1,000
feet of the property to be certified. For purposes of this Section,
a use shall be considered existing or established if it is in
existence at the time an application is submitted.
If a person who wishes to operate a sexually oriented business
is an individual, he/she must sign the application for a permit
as applicant. If a person wishes to operate a sexually oriented
business collectively with a group of individuals, each individual
who has a ten percent (10%) or greater interest in the business
must sign the application for a permit as applicant. If a corporation
is listed as owner of a sexually oriented business or as the
entity that wishes to operate such a business, each individual
having a ten percent (10%) or greater interest in the corporation
must sign the application for a permit as applicant.
14. If a person wishes to operate a sexually oriented business
which shall exhibit on the premises films, video cassettes,
or other video reproductions which depict specified sexual activities
or specified anatomical areas, then said person shall comply
with the application requirements stated at §125.14 et. seq.
G. Applicants for a permit under this Section shall have a continuing
duty to promptly supplement application information required by
this Section in the event that said information changes in any way
from what is stated on the application. The failure to comply with
said continuing duty within thirty (30) days from the date of such
change, shall be grounds for suspension of a permit.
H. In the event that the Mishawaka Board of Public Works and Safety
or its designee determines or learns at any time that the applicant
has improperly completed the application for a proposed sexually
oriented business, he/she shall promptly notify the applicant of
such fact and allow the applicant ten (10) days to properly complete
the application. (The time period for granting or denying a permit
shall be stayed during the period in which the applicant is allowed
an opportunity to properly complete the application.)
I. The applicant must be qualified according to the provisions
of this Ordinance and the premises must be inspected and found to
be in compliance with health, fire and building codes and laws.
J. The applicant shall be required to pay a non-refundable application
fee of one hundred dollars ($100.00) at the time of filing an application
under this Section of this Ordinance.
K. Prior to obtaining any permit or license to operate any sexually
oriented business defined in this Ordinance, and as part of any
application for a permit under this Section, the applicant shall
obtain from the Mishawaka Board of Public Works and Safety or its
designee a certification that the proposed location of such business
complies with the Mishawaka Zoning Ordinance.
L. The fact that a person possesses other types of state or city
permits and/or licenses does not exempt him/her from the requirement
of obtaining a sexually oriented business permit.
M. By applying for a permit under this Ordinance, the applicant
shall be deemed to have consented to the provisions of this Ordinance
and to the exercise by the Mishawaka Board of Public Works and Safety
or its designee, the Mishawaka Police Department and all other City
agencies charged with enforcing the laws, ordinances and codes applicable
in the City of their respective responsibilities under this Ordinance.
N. The applicant shall be required to provide the City with the
names of any and all employees who are required to be licensed pursuant
to §125.13 of this Ordinance. This shall be a continuing requirement
even after a permit is granted or renewed.
§125.04 INVESTIGATION AND APPLICATION.
A. Upon receipt of an application properly filed with the City
and upon payment of the non-refundable application fee, the City
Controller shall immediately stamp the application as received and
shall immediately thereafter send photocopies of the application
to the Mishawaka Police Department and any other City agencies responsible
for enforcement of health, fire and building codes and laws. Each
department or agency shall promptly conduct an investigation of
the applicant, application and the proposed sexually oriented business
in accordance with its responsibilities under law and as set forth
in this Ordinance. Said investigation shall be completed within
twenty (20) days of receipt of the application by the City Controller.
At the conclusion of its investigation, each department or agency
shall indicate on the photocopy of the application its approval
or disapproval of the application, date it, sign it, and, in the
event it disapproves, state the reasons. The Mishawka Police Department
shall only be required to certify the NCIC records request check
mentioned at §125.05. The Police Department shall not be required
to approve or disapprove applications.
B. A department or agency shall disapprove an application if it
finds that the proposed sexually oriented business will be in violation
of any provision of any statute, code, ordinance, regulation or
other law in effect in the City. After its indication of approval
or disapproval, each department or agency shall immediately return
the photocopy of the application to the City Controller who shall
forward the application and any accompanying materials to the Mishawka
Board of Public Works and Safety for consideration.
§125.05 ISSUANCE OF PERMIT.
A. The Mishawaka Board of Public Works and Safety or its designee,
shall grant or deny an application for a permit within thirty (30)
days from the date of its proper filing. Upon the expiration of
the thirtieth (30th) day, unless the applicant requests and is granted
a reasonable extension of time, the applicant shall be permitted
to begin operating the business for which the permit is sought,
unless and until the Mishawaka Board of Public Works and Safety
or its designee, notifies the applicant of a denial of the application
and states the reasons(s) for that denial.
B. Grant of Application for Permit
1. The Mishawaka Board of Public Works and Safety or its designee,
shall grant the application unless one or more of the criteria
set forth in Section C below is present.
2. The permit, 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 permit
shall also indicate that the sexually oriented business shall
be subject to prohibitions against Public Nudity and Indecency
pursuant to the Indiana Penal Code 35-45-4-1. The permit shall
be posted in a conspicuous place at or near the entrance to the
sexually oriented business so that it can be read easily at any
time.
C. Denial of Application for Permit
1. The Mishawaka Board of Public Works and Safety or its designee,
shall deny the application for any of the following reasons:
a. An applicant is under eighteen years of age.
b. An applicant or an applicant's spouse is overdue on his/her
payment to the City of taxes, fees, fines, or penalties assessed
against him/her or imposed upon him/her in relation to a sexually
oriented business.
c. An applicant is residing with a person who has been denied
a permit by the Mishawaka Board of Public Works and Safety to
operate a sexually oriented business within the preceding twelve
(12) months, or residing with a person whose permit to operate
a sexually oriented business has been revoked within the preceding
twelve (12) months.
d. An applicant has failed to provide information required
by this Section or permit application for the issuance of the
permit or has falsely answered a question or request for information
on the application form.
e. The premises to be used for the sexually oriented business
have not been approved as being in compliance with health, fire
and building codes by the department or agency responsible under
law for investigating said compliance.
f. The application or permit fees required by this Ordinance
have not been paid.
g. An applicant of the proposed business is in violation of,
or is not in compliance with, any of the provisions of this
Ordinance or the Mishawaka Zoning Ordinance.
h. The granting of the application would violate a statute,
ordinance, or court order.
i. The applicant has a permit under this Ordinance that has
been suspended or revoked.
j. An applicant has been convicted of a "specified criminal"
act for which:
(1) less than two (2) years have elapsed since the date of
conviction or the date of release from confinement, whichever
is the later date, if the conviction is of a misdemeanor offense
for the "specified criminal" acts which are sexual crimes
against children, sexual abuse, rape or crimes connected with
another sexually oriented business including, but not limited
to, distribution of obscenity or material harmful to minors,
prostitution, pandering, or tax violations;
(2) less than five (5) years have elapsed since the date
of conviction or the date of release from confinement, whichever
is the later date, if the conviction is of a felony offense;
for the "specified criminal" acts which are sexual crimes
against children, sexual abuse, rape or crimes connected with
another sexually oriented business including but not limited
to distribution of obscenity or material harmful to minors,
prostitution, pandering, or tax violations;
(3) less than five (5) years have elapsed since the date
of conviction or the date of release from confinement, whichever
is the later date, if the convictions are of two or more misdemeanor
offenses for "specified criminal" acts which are sexual crimes
against children, sexual abuse, rape or crimes connected with
another sexually oriented business including but not limited
to distribution of obscenity or materials harmful to minors,
prostitution, pandering or tax violations; offenses occurring
within any twenty-four month period;
(4) the fact that a conviction is being appealed shall have
no effect on disqualification of the applicant.
(5) An applicant who has been convicted of the above described
"specified criminal acts" may qualify for a sexually oriented
business permit only when the time period required above in
§125.05(C)(1)(j) has elapsed.
k. An applicant knowingly has in his or her employ, an employee
who does not have a valid license as required in §125.13 of
this Ordinance.
2. If the Mishawaka Board of Public Works and Safety or its designee,
denies the application, he/she shall notify the applicant of the
denial and state the reason(s) for the denial.
3. If a person applies for a permit for a particular location
within a period of twelve (12) months from the date of denial
of a previous application for a permit at the location, and there
has not been an intervening change in the circumstances which
could reasonably be expected to lead to a different decision regarding
the former reasons for denial, the application shall be denied.
§125.06 ANNUAL PERMIT FEE.
The annual fee for a sexually oriented business permit is Two Hundred
Dollars ($200.00).
§125.07 INSPECTION.
A. An applicant or permittee shall permit representatives of the
City of Mishawaka and St. Joseph County to inspect the premises
of a sexually oriented business for the purpose of insuring compliance
with the law, at any time it is occupied or open for business.
B. A person who refuses to permit any such inspection of the premises
at any time that it is occupied or open for business shall be in
violation of this Ordinance.
§125.08 EXPIRATION OF PERMIT.
A. Each permit shall expire one (1) year from the date of issuance
and may be renewed only by making application as provided in §125.05
(for renewals, filing of original survey shall be sufficient) of
this Ordinance. Application for renewal shall be made at least thirty
(30) days before the expiration date, and when made less than thirty
(30) days before the expiration date, the expiration of the permit
will not be affected.
B. When the Mishawaka Board of Public Works and Safety or its designee,
denies renewal of the permit, the applicant shall not be issued
a permit under this Ordinance for one (1) year from the date of
denial. If, subsequent to denial, the Mishawaka Board of Public
Works and Safety or its designee, finds that the basis for denial
of the renewal of the permit has been corrected, the applicant shall
be granted a permit if at least ninety (90) days have elapsed since
the date denial became final.
§125.09 SUSPENSION OF PERMIT.
A. The Mishawaka Board of Public Works and Safety or its designee,
shall suspend a permit for a period not to exceed thirty (30) days
if he/she determines that a permittee, or an employee of a permittee,
has:
Violated or is not in compliance with any section of this Ordinance;
or Been under the influence of alcoholic beverages or any controlled
substances while working in the sexually oriented business premises;
or
Refused to allow an inspection of sexually oriented business
premises as authorized by this Ordinance; or
Knowingly permitted gambling by any person on the sexually oriented
business premises; or
Operated the sexually oriented business in violation of a building,
fire, health, or zoning statute, code, ordinance or regulation,
whether federal, state or local, said determination being based
on investigation by the division, department or agency charged
with enforcing said rules or laws. In the event of such statute,
code, ordinance or regulation violation, the Mishawaka Board of
Public Works and Safety or its designee, shall promptly notify
the permittee of the violation and shall allow the permittee a
seven (7) day period in which to correct the violation. If the
permittee fails to correct the violation before the expiration
of the seven (7) day period, the Mishawaka Board of Public Works
and Safety or its designee, shall forthwith suspend the permit
and shall notify the permittee of the suspension.
Operated the sexually oriented business in violation of the hours
of operation §125.17.
Knowingly employs a person who does not have a valid license
as required in §125.13 of this Ordinance.
B. The suspension shall remain in effect until the violation of
the statute, code, ordinance or regulation in question has been
corrected.
§125.10 REVOCATION OF PERMIT.
A. The Mishawaka Board of Public Works and Safety or its designee
shall revoke a permit if a cause of suspension in §125.09 of this
Ordinance occurs and the permit has been suspended within the preceding
twelve (12) months.
B. The Mishawaka Board of Public Works and Safety or its designee,
shall revoke a permit upon determining that:
A permittee gave false or misleading information in the material
submitted during the application process that tended to enhance
the applicant's opportunity for obtaining a permit; or
A permittee or an employee has knowingly allowed possession,
use or sale of controlled substances in or on the premises; or
A permittee or an employee has knowingly allowed prostitution
on the premises; or A permittee or an employee knowingly operated
the sexually oriented business during a period of time when the
permittee's permit was suspended; or
A permittee has been convicted of a "specified criminal act"
for which the time period required in§125. 05 of this Ordinance
has not elapsed; or
On two or more occasions within a twelve (12) month period, a
person or persons committed an offense, occurring in or on the
permitted premises, constituting a specified criminal act for
which a conviction has been obtained, and the person or persons
were employees of the sexually oriented business at the time the
offenses were committed. The fact that a conviction is being appealed
shall have no effect on the revocation of the permit; or
A permittee is convicted of tax violations for any taxes or fees
related to a sexually oriented business; or
A permittee or an employee has knowingly allowed any act of sexual
intercourse, sodomy, oral copulation, masturbation, or any other
specified sexual activities to occur in or on the permitted premises.
A permittee has been operating more than one sexually oriented
business under a single roof.
A permittee has engaged in or attempted to engage in a transfer
of permit in violation of §125.12 of this Ordinance.
B. When the Mishawaka Board of Public Works and Safety or its designee,
revokes a permit, the revocation shall continue for one (1) year
and the permittee shall not be issued a sexually oriented business
permit for one (1) year from the date revocation became effective.
If, subsequent to revocation, the Mishawaka Board of Public Works
and Safety or its designee finds that the basis for revocation under
§125.10 of this Ordinance has been corrected, the applicant shall
be granted a permit if at least ninety (90) days have elapsed since
the date revocation became effective. If the permit was revoked
under §125.10 of this Ordinance, an applicant may not be granted
another permit until the number of years required under §125.10
have elapsed.
§125.11 JUDICIAL REVIEW OF PERMIT DENIAL, SUSPENSION OR REVOCATION.
After denial of an application, or denial of a renewal of an application,
or suspension or revocation of a permit, the applicant or permittee
may seek judicial review of the administrative action in St. Joseph
Superior or Circuit Court.
§125.12 TRANSFER OF PERMIT.
A. A permittee shall not operate a sexually oriented business under
the authority of a permit at any place other than the address designated
in the application for permit.
B. A permittee shall not transfer his/her permit to another person.
C. A permittee shall not transfer his/her permit to another location.
D. Any attempt to transfer a permit either directly or indirectly
in violation of this Section is hereby declared void and the permit
shall be deemed revoked.
§125.13 SEXUALLY ORIENTED BUSINESS EMPLOYEE LICENSE.
A. Each individual to be employed in a sexually oriented business,
as defined in §125.02 of this Ordinance, who engages in the services
rendered by a nude model studio, escort or escort agency, sexual
encounter establishment, massage parlor (except for massage parlors
licensed pursuant to Chapter 115 of the Mishawaka Municipal Code),
or a live performer or entertainer shall be required to obtain a
Sexually Oriented Business Employee License. Each applicant shall
pay a permit fee of twenty five dollars ($25.00). Said fee is to
cover reasonable administrative costs of the licensing application
process.
B. Before any applicant may be issued a Sexually Oriented Business
Employee License, the applicant shall submit on a form to be provided
by the Mishawaka Board of Public Works and Safety or its designee
the following information:
The applicant's name or any other names (including "stage" names)
or aliases used by the individual;
Age, date, and place of birth; Height, weight, hair and eye color;
Present residence address and telephone number;
Present business address and telephone number;
State driver's license or identification number;
Social Security number; and
Acceptable written proof that the individual is at least eighteen
(18) years of age.
Attached to the application form as provided above, a color photograph
of the applicant clearly showing the applicant's face, and the
applicant's fingerprints on a form provided by the Mishawka Police
Department. Any fees for the photographs and fingerprints shall
be paid by the applicant.
A statement detailing the license or permit history of the applicant
for the five (5) years immediately preceding the date of the filing
of the application, including whether such applicant previously
operating or seeking to operate, in this or any other county,
city, state, or country has ever had a license, permit, or authorization
to do business denied, revoked, or suspended, or had any professional
or vocational license or permit denied, revoked, or suspended.
In the event of any such denial, revocation, or suspension, state
the date, the name of the issuing or denying jurisdiction, and
describe in full the reasons for the denial, revocation, or suspension.
A copy of any order of denial, revocation, or suspension shall
be attached to the application.
Whether the applicant has been convicted of a "specified criminal"
act as defined in §125.05(C)(1)(j) of this Ordinance. This information
shall include the date, place, nature of each conviction or plea
of nolo contendere and identifying the convicting jurisdiction.
The Mishawaka Board of Public Works and Safety designee shall
refer the Sexually Oriented Business Employee License Application
to the Mishawaka Police Department for an investigation to be
made of such information as is contained on the application. The
application process shall be completed within ten (10) days from
the date the completed application is filed. After the investigation,
the Mishawaka Board of Public Works and Safety or its designee
shall issue a license unless the report from the police department
finds that one or more of the following findings is true:
That the applicant has knowingly made any false, misleading,
or fraudulent statement of a material fact in the application
for a license, or in any report or record required to be filed
with the sheriff's department or other department of the city;
That the applicant is under eighteen (18) years of age;
That the applicant has been convicted of a "specified criminal
act" as defined in §125.05(C)(1)(j) of this Ordinance;
That the Sexually Oriented Business Employee License is to
be used for employment in a business prohibited by local or
state law, statute, rule or regulation, or prohibited by particular
provisions of this Ordinance;
That the applicant has had a Sexually Oriented Business Employee
License revoked by the city within two (2) years of the date
of the current application.
C. Renewal of license:
1. A license granted pursuant to this Section shall be subject
to annual renewal by the Mishawaka Board of Public Works and Safety
or its designee upon the written application of the applicant
and a finding by the Mishawaka Board of Public Works and Safety
or its designee and the Mishawaka Police Department that the applicant
has not been convicted of any "specified criminal act" as defined
in §125.05(C)(1)(j) of this Ordinance or committed any act during
the existence of the previous license period which would be grounds
to deny the initial permit application.
2. The renewal of the license shall be the same as the initial
application fee.
125.14 REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY EXPLICIT
FILMS OR VIDEOS IN VIDEO BOOTHS.
A. A person who operates or causes to be operated a sexually oriented
business, other than a sexually oriented motel/hotel, regardless
of whether or not a permit has been issued to said business under
this Ordinance, which exhibits on the premises in a viewing room
of less than one hundred fifty (150) square feet of floor space,
a film, video cassette or other video reproduction which depicts
specified sexual activities or specified anatomical areas, shall
comply with the following requirements:
Upon application for a sexually oriented business permit, the
application shall be accompanied by a diagram of the premises
showing a plan thereof specifying the location of one or more
manager's stations, the location of all overhead lighting fixtures
and designating any portion of the premises wherein patrons will
not be permitted. A manager's station may not exceed thirty-two
(32) square feet of floor area with no dimension greater than
eight (8) feet. The diagram shall also designate the place where
this permit will be conspicuously posted, if granted. A professionally
prepared diagram in the nature of an engineer's or architect's
blueprint shall not be required; however, each diagram should
be oriented to the north or to some designated street or object
and should be drawn to a designated scale with marked dimensions
sufficient to show the various internal dimension of all areas
of the interior of the premises to an accuracy of plus or minus
six (6) inches. The City Manager or his/her designee, 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.
The application shall be sworn to be true and correct by the
applicant.
No alteration in the configuration or location of a manager's
station may be made without the prior approval of the Mishawaka
Board of Public Works and Safety or its designee.
It is the duty of the owners and operator of the premises to
insure that at least one employee is on duty and situated at each
manager's station at all times that any patron is present inside
the premises.
The interior of the premises shall be configured in such a manner
that there is an unobstructed view from a manager's station of
every area of the premises to which any patron is permitted access
for any purpose, excluding restrooms. Restrooms may not contain
video reproduction equipment. If the premises have two or more
manager's stations designated, then the interior of the premises
shall be configured in such a manner that there is an unobstructed
view of each area of the premises to which any patron is permitted
access for any purpose from at least one of the manager's stations.
The view required in this subsection must be by direct line of
sight from the manager's station.
It shall be the duty of the owners and operator, and it shall
also be the duty of any agents and employees present on the premises
to insure that the view area specified in Subsection 5 remains
unobstructed by any doors, walls, merchandise, display racks or
other materials or person at all times and to insure that no patron
is permitted access to any area of the premises which has been
designated as an area in which patrons will not be permitted in
the application filed pursuant to Subsection A. of this Section.
No viewing room may be occupied by more than one person at any
one time. No holes, commonly known as "glory holes," shall be
allowed in the walls or partitions which separate each viewing
room from an adjoining viewing room or restroom.
The premises shall be equipped with overhead lighting fixtures
of sufficient intensity to illuminate every place to which patrons
are permitted access and an illumination of not less than two
(2.0) foot candle as measured at the floor level.
It shall be the duty of the owners and operator and it shall
also be the duty of any agents and employees present on the premises
to insure that the illumination described above is maintained
at all times that any patron is present on the premises.
B. A person having a duty this under Section commits a misdemeanor
if he/she knowingly fails to fulfill that duty.
§125.15 PROHIBITIONS REGARDING MINORS AND SEXUALLY ORIENTED BUSINESSES.
It shall be unlawful for a person who operates or causes to be
operated a sexually oriented business, regardless of whether or
not a permit has been issued for said business under this Ordinance,
to knowingly or with reasonable cause knows, permits, suffers, or
allows:
Admittance of a person under eighteen (18) years of age to the
business premises;
A person who is under eighteen (18) years of age to work at the
business premises as an employee.
It shall be the duty of the operator of each sexually oriented
business to ensure that an attendant is stationed at each public
entrance at all times during such sexually oriented businesses’
regular business hours. I t shall be the duty of the attendant
to prohibit any person under the age of eighteen (18) years from
entering the establishment. It shall be presumed that an attendant
knew a person was under the age of eighteen (18) unless the attendant
asked for and was furnished:
a. a valid operator’s, commercial operator’s or chauffeur’s
license; or
b. a valid personal identification certificate issued by the
State of Indiana reflecting that such person is eighteen (18)
years of age or older.
§125.16 ADVERTISING AND LIGHTING REGULATIONS.
A. It shall be unlawful for the owner or operator of a sexually
oriented business, regardless of whether or not a permit has been
issued for said business under this Ordinance, to advertise the
presentation of any activity prohibited by any applicable state
statute or local ordinance.
B. It shall be unlawful for the owner or operator of a sexually
oriented business, regardless of whether or not a permit has been
issued for said business under this Ordinance, to display or otherwise
exhibits the materials and/or performances at such sexually oriented
business in any advertising or any portion of the interior premises
which is visible outside the premises. This prohibition shall not
extend to advertising of the existence or location of such sexually
oriented business.
C. It shall be unlawful for the owner or operator of a sexually
oriented business, regardless of whether or not a permit has been
issued for said business under this Ordinance, to allow the exterior
portion of the sexually oriented business to have flashing lights,
or any words, lettering, photographs, silhouettes, drawings, or
pictorial representations of any manner except to the extent permitted
by the provisions of this Ordinance.
D. It shall be unlawful for the owner or operator of a sexually
oriented business, regardless of whether or not a permit has been
issued for said business under this Ordinance, to erect, construct,
or maintain any sign for the sexually oriented business other than
as permitted by the Mishawaka On-Premise Sign Ordinance and as follows:
(1) Signage shall contain no photographs, silhouettes, drawings
or pictorial representations in any manner, and may contain only
the legal name of the enterprise.
(2) Each letter forming a word on a primary sign shall be of
solid color, and each such letter shall be the same print-type,
size, and color. The background behind such lettering on the display
surface of a primary sign shall be of a uniform and solid color.
E. It shall be unlawful for the owner or operator of a sexually
oriented business, regardless of whether or not a permit has been
issued for said business under this Ordinance, to allow the exterior
portions of the establishment to be painted any color other than
a single achromatic color. This provision shall not apply to a sexually
oriented business if the following conditions are met:
the establishment is a part of a commercial multiunit center;
and
the exterior portions of each individual unit in the commercial
multiunit center, including the exterior portions of the business,
are painted the same color as one another or are painted in
such a way so as to be a component of the overall architectural
style or pattern of the commercial multiunit center.
F. All off-street parking areas and premise entries of the sexually
oriented business shall be illuminated from dusk to closing hours
of operation with a lighting system which provides an average maintained
horizontal illumination of one (1.0) 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
areas and walkways serving the sexually oriented business for the
personal safety of patrons and employees and to reduce the incidence
of vandalism and criminal conduct. The lighting shall be shown on
the required sketch or diagram of the premise.
G. Nothing contained in this Section of the Ordinance shall relieve
the operator(s) of a sexually oriented business from complying with
the requirements of the City of Mishawaka, commonly known as the
Sexually Oriented Business Ordinance, as it may be amended from
time to time, or any subsequently enacted City ordinances or regulations.
§125.17 HOURS OF OPERATION.
A. It shall be unlawful for any person to operate or cause to
be operated a sexually oriented business, regardless of whether
or not a permit has been issued for said business under this Ordinance,
and allows such business to remain open for business, or to permit
any employee to engage in a performance, solicit a performance,
make a sale, solicit a sale, provide a service, or solicit a service,
between the hours of 10:00 p.m. and 10:00 a.m. of any particular
day.
B. It shall be unlawful for any person while working as an employee
of a sexually oriented business, regardless of whether or not a
permit has been issued for said business under this Ordinance, to
engage in a performance, solicit a performance, make a sale, solicit
a sale, provide a service, or solicit a service between the hours
of 10:00 p.m. and 10:00 a.m. of any particular day.
§125.18 NUDITY AT SEXUALLY ORIENTED BUSINESSES PROHIBITED.
No person shall allow public nudity in any sexually oriented business.
Any sexually oriented business which is found in violation of this
section shall have its permit suspended pursuant to the provisions
of §125.09.
§125.19 REGULATIONS PERTAINING TO LIVE ENTERTAINMENT.
A. For purposes of this Section, "live entertainment" is defined
as a person who appears nude, semi-nude, or a performance which
is characterized by the exposure of "specified anatomical areas"
or by "specified sexual activities".
B. No person shall perform live entertainment for patron(s) of
a sexually oriented business establishment except upon a stage at
least eighteen (18) inches above the level of the floor which is
separated by a distance of at least ten (10) feet from the nearest
area occupied by patron(s). No patron shall be permitted within
ten (10) feet of the stage while the stage is occupied by a performer.
C. The sexually oriented business establishment shall provide separate
dressing room facilities for female and male performers that shall
not be occupied or used in any way by any one other than performers.
D. The sexually oriented business establishment shall provide access
for performers between the stage and the dressing rooms which is
completely separated from the patrons. If such separate access is
not physically feasible, the establishment shall provide a minimum
four (4) foot wide walk aisle for performers between the dressing
room area and the stage, with a railing, fence or other barrier
separating the patrons and the performers which prevents any physical
contact between patrons and performers.
E. No entertainer, either before, during, or after a performance,
shall have physical contact with any patron and no patron shall
have physical contact with any entertainer either before, during
or after a performance. This subsection shall only apply to physical
contact while in or on the premises of the establishment.
F. Fixed rails at least thirty (30) inches in height shall be maintained
establishing the separations between performers and patrons required
by this section.
G. No patron shall directly pay or give any gratuity to any entertainer.
A patron who wishes to pay or give a gratuity to a performer shall
place the gratuity in a container that is at all times located separately
from the performers for the purpose of preventing any physical contact
between a patron and a performer. No performer shall solicit any
gratuity from any patron.
H. No operator of a sexually oriented business establishment shall
cause or allow a performer to engage in any entertainment such as
a "couch" or a "straddle" dance with a patron while in or on the
establishment premises. No performer shall contract to or engage
in a "couch" or "straddle" dance with a patron while in or on the
establishment premises. For purposes of this subsection, "couch"
or "straddle" dance is defined as an employee of the establishment
intentionally touching or coming within ten (10) feet of any patron
while engaged in the display or exposure of any "specified anatomical
area", or any "specified sexual activity". For purposes of this
subsection, "employee" is defined as it is in §125.022(B).
I. §125.19 shall not apply to an employee of an establishment who,
while acting as a waiter, waitress, host, hostess, or bar tender,
comes within ten (10) feet of a patron. No employee shall engage
in any "specified sexual activity" or display or expose any "specified
anatomical area" while acting as a waiter, waitress, host, hostess,
or bar tender.
J. Compliance with this section:
1. For purposes of this Section, establishment is defined as
it is in §125.02(C) of this Ordinance. No establishment shall
be in compliance with this Section until the City's designated
agent(s) have inspected and approved of the establishment's compliance.
The City shall have ten (10) days from the date it receives written
notice from the operator that the establishment is ready for inspection
to approve or disapprove of compliance required by this Section.
Failure to approve or disapprove of compliance within ten (10)
days shall constitute a finding of compliance under this Section.
2. The operator of an establishment, that has been providing
live entertainment under a valid sexually oriented business permit,
shall have the time periods listed below in which to bring the
establishment into compliance with this Section. Failure to do
so while continuing to provide live entertainment shall cause
the establishment's permit to be suspended under §125.09 of this
Ordinance. The permit shall remain suspended until the establishment
is approved by the City's designated agent(s) as being in full
compliance with this Section.
3. The operator of establishment, that has been operating under
a valid permit for another classification of sexually oriented
business and who wishes to provide live entertainment at that
establishment, shall apply for and receive a sexually oriented
business permit for the operation of an establishment providing
live entertainment before any live entertainment is provided at
that establishment. No live entertainment permit shall be issued
until the establishment is approved as being in full compliance
with this Section and all other applicable requirements of this
Ordinance.
4. The Applicant for a permit to operate a new establishment,
who wishes to provide live entertainment, shall apply for and
receive a sexually oriented business permit for the operation
of an establishment providing live entertainment before any live
entertainment is provided. No live entertainment permit shall
be issued until the establishment is approved as being in full
compliance with this Section and all other applicable requirements
of this Ordinance.
5. Compliance with Subsection B must occur within sixty (60)
days from the date this Section becomes effective.
6. Compliance with Subsection C must occur within ninety (90)
days from the date this Section becomes effective.
7. Compliance with Subsection D must occur within ninety (90)
days from the date this Section becomes effective.
8. Compliance with Subsection E must occur upon the date this
Section becomes effective.
9. Compliance with Subsection F must occur within sixty (60)
days from the date this Section becomes effective.
10. Compliance with Subsection G must occur upon the date this
Section becomes effective.
11. Compliance with Subsection H must upon the date this Section
becomes effective.
§125.20 EXEMPTIONS.
A. It is a defense to prosecution for any violation of this Ordinance
that a person appearing in a state of nudity did so in a modeling
class operated:
By a college, junior college, or university supported entirely
or partly by taxation;
By a private college or university that maintains and operates
educational programs in which credits are transferable to a college,
junior college, or university supported entirely or partly by
taxation; or:
In a structure:
Which has no sign visible from the exterior of the structure
and no other advertising that indicates a nude person is available
for viewing; and
Where, in order to participate in a class a student must enroll
at least three (3) days in advance of the class; and
Where no more than one nude model is on the premises at any
one time.
B. It is a defense to prosecution for a violation of this Ordinance
that an employee of a sexually oriented business, regardless of
whether or not it is permitted under this Ordinance, exposed any
specified anatomical area during the employee's bona fide use of
a restroom, or during the employees bona fide use of a dressing
room which is accessible only to employees.
§125.21 CRIMINAL PENALTIES AND ADDITIONAL LEGAL, EQUITABLE, AND
INJUNCTIVE RELIEF.
A. If any person fails or refuses to obey or comply with or violates
any of the provisions of this Ordinance, such person upon conviction
of such offense, shall be punished by a fine not to exceed Two Thousand
Five Hundred Dollars ($2,500). Each violation or non-compliance
shall be considered a separate and distinct offense. Further, each
day of continued violation or non-compliance shall be considered
as a separate offense.
B. Nothing herein contained shall prevent or restrict the City
from taking such other lawful action in any court of competent jurisdiction
as is necessary to prevent or remedy any violation or non-compliance.
Such other lawful actions shall include, but shall not be limited
to, an equitable action for injunctive relief or an action at law
for damages.
C. Further, nothing in this Section shall be construed to prohibit
the City from prosecuting any violation of this Ordinance by means
of the Mishawaka Code Enforcement Hearing established pursuant to
§150.29.
D. All remedies and penalties provided for in this Section shall
be cumulative and independently available to the City and the City
shall be authorized to pursue any and all remedies set forth in
this Section to the full extent allowed by law.
§125.22 PROHIBITION OF DISTRIBUTION OF SEXUAL DEVICES.
A. It is unlawful for anyone to distribute, for commercial purposes,
sell or offer for sale any device, instrument or paraphernalia designed
or marketed primarily for stimulation of human genital organs or
for sadomasochistic use or abuse of themselves or others.
B. Such devices, instruments or paraphernalia shall include, but
are not limited to, phallic shaped vibrators, dildo's, muzzles,
whips, chains, bather restraints, racks, non-medical enema kits,
body piercing implements (excluding earrings or other decorative
jewelry) or other tools of sado-masochistic abuse.
§125.23 SEVERABILITY.
If any section, subsection or clause of this Ordinance shall be
deemed to be unconstitutional or otherwise invalid, the validity
with the remaining section, subsection and clauses shall not be
affected thereby.
§125.24 CONFLICTING ORDINANCE REPEALED.
All ordinances or parts of ordinances in conflict with the provisions
of this ordinance are hereby repealed.
Section 2. This Ordinance shall be in full force and effect from
and after its passage by the Common Council, signature of the Mayor,
attestation by the City Clerk and publication as required by law.
PASSED BY THE COMMON COUNCIL of the City of Mishawaka, Indiana,
on this _20th__ day of __July, 1999, at __8:31_ o'clock __P_.M.
Steven T. Emmons_________/s/___
Steven T. Emmons, Presiding Officer
ATTEST:
Deborah S. Block________/s/_____
Deborah S. Block, City Clerk
PRESENTED by me to the Mayor this _22nd__ day of __July_____, 1999,
at __11:24_ o'clock __A.__.M.
Deborah S. Block___________/s/
Deborah S. Block, City Clerk APPROVED by me this _28th____ day of
__July______, 1999, at __10:05___ o'clock ___A__.M.
Robert C. Beutter_________/s/__
Robert C. Beutter, Mayor
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