COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 970827

Amending Chapter 34, Code of Ordinances of the City of Kansas City, Missouri, by repealing Section 34-106, Regulation of establishments where unsafe sexual activities are likely to take place, and amending Chapter 12, Code of Ordinances by enacting a new article to be numbered and entitled Article VII, Motion Picture Arcade Booth Establishments.

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

Section A. That Chapter 34, Code of Ordinances of the City of Kansas City, Missouri, is hereby amended by repealing Section 34-106, Regulation of establishments where unsafe sexual activities are likely to take place.

Section B. That Chapter 12, Code of Ordinances of the City of Kansas City, Missouri, is hereby amended by enacting a new article, Article VII, Motion Picture Arcade Booth Establishments, to be numbered and read as follows:

ARTICLE VII

MOTION PICTURE ARCADE BOOTH ESTABLISHMENTS.

Sec. 12-275. Motion picture arcade booth establishments; purpose and intent.

(a) The purpose and intent of this article is to further the public health and safety of motion picture arcade booth establishments by reducing the likelihood that patrons will engage in masturbation, sexual intercourse, sodomy, cunnilingus, anilingus, fellatio, or any excretory function or representation thereof, or any unlawful activity within such commercial premises. The health, safety and welfare of all persons must be protected by the establishment of standards for such premises, structures, or parts thereof to reduce the spread of sexually transmitted diseases.

(b) Because motion picture arcade booth establishments, structures, or parts thereof which, due to their design, are used for sexual conduct or criminal sexual conduct and, therefore, place persons at risk of infection from sexually transmitted diseases it is necessary to regulate them for the prevention of the spread of such diseases and for the protection of the public health, safety and welfare.

Sec. 12-276. Motion picture arcade booth establishments; definitions.

For purposes of this article, the following terms shall have the meanings given in this section:

(a) Motion picture arcade booth. Any booth, cubicle, stall, compartment, partitioned portion of a room or enclosure which is designed, constructed or used to hold patrons and is used for presenting moving pictures or viewing publications or live performances which depict "specified
sexual activities", as defined below, by any photographic, electronic, magnetic, digital or other means or medium (including, but not limited to, film, video or magnetic tape, laser disc, cd-rom, books, magazines or periodicals) for observation by patrons therein. The terms "booth", "arcade booth", "preview booth" and "video arcade booth" shall be synonymous with the term "motion picture arcade booth".

(b) Motion picture arcade establishment. Any business wherein one or more motion picture arcade booths are located. The terms "establishment" and "video arcade" shall be synonymous with the "motion picture arcade establishment".

(c) Person. Any individual, firm, partnership, corporation or association.

(d) Specified sexual activities. Activities, services or performances that include the following sexual activities and/or the exhibition of the following anatomical areas:

(1) Human genitals in a state of sexual stimulation or arousal;

(2) Acts of human masturbation, sexual intercourse, sodomy, cunnilingus, anilingus, fellatio or any excretory function, or representation thereof; or

(3) Fondling or erotic touchings of human genitals, pubic regions, buttocks or breasts.

Sec. 12-277. Motion picture arcade booth establishments; operating requirements.

The owner, operator and/or other person in charge of a motion picture arcade booth establishment shall be responsible for complying with the following operating requirements:

(a) Each room containing one or more motion picture arcade booths must be in compliance with all applicable state and local building, fire, electrical, and health codes and be maintained in a clean and sanitary condition.

(b) Each motion picture arcade establishment which contains individual motion picture arcade booths shall designate and clearly mark at least one portion of the premises to be a manager's station in which patrons will not be permitted.

(c) Each and every motion picture arcade booth within a motion picture arcade booth establishment must meet all of the following requirements:

(1) Each motion picture arcade booth must be in compliance with all applicable state and local building, fire, electrical and health codes and be maintained in a clean and

sanitary condition.

(2) Each motion picture arcade booth shall have at least one side completely open to adjacent public rooms and the manager's station and must be sufficiently illuminated

so that the entire area inside each motion picture arcade booth is visible to persons

in adjacent public rooms and the manager's station. The illumination level shall be

at a minimum illumination of not less than 1.0 foot-candle as measured at the floor

level within the booths and it shall be the duty of the owner and operator and the duty

of any agents and employees present in the premises to ensure that the illumination

described in this subsection is maintained at all times that any patron is present in the

premises.

(3) The open side of each motion picture arcade booth shall not have any curtain, door, wall, enclosure or visual obstruction.

(4) The surface of all walls between each motion picture arcade booth shall be covered from top to bottom and side to side with metal and maintained free of holes or other

structural openings which permit physical contact between patrons within the booth

and any other person in the establishment.

(5) The interior of one motion picture arcade booth shall not be visible from the interior of any other motion picture arcade booth if such booths are located within 10 feet of

each other as measured from the closest points of the edge of the openings of the

booths, nor shall adjoining booths be designed or constructed in such a manner that

the interior of said booths may be made visible to each other at any time or by any

means.

(6) A motion picture arcade booth shall not be occupied by more than one person at any time.

(d) Motion picture arcade booth establishments must post signs, prepared by or approved by the director of the department of neighborhood and community services or his designee, in prominent locations in every room inside the premises. The signs must be clearly visible to the patrons, and must contain information approved by the director of health or his designee, describing the risks and methods of transmission of venereal diseases and listing unsafe sexual activities.

(e) The premises must be monitored with sufficient frequency to ensure compliance with these regulations.

(f) The interior of the premises shall be configured in such a manner that there is an unobstructed view from the 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 has 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. This required view must be by direct line of sight from the manager's station.

(g) To ensure that such view area remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted.

(h) To ensure that at least one employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.

(i) It shall be unlawful for any person occupying a motion picture arcade booth to engage in any "specified sexual activities", as defined in Section 12-276(d), cause any bodily discharge or litter while inside the motion picture arcade booth.

Sec. 12-278. Motion picture arcade booth establishments; prevention information.

The owner, operator or other designated person in charge of a motion picture arcade establishment shall make available to each patron of the facility a pamphlet, prepared by or approved by the department of neighborhood and community services, containing venereal disease prevention information. Such pamphlet must contain information on gonorrhea, syphilis and AIDS.

Sec. 12-279. Motion picture arcade booth establishments; inspections; duties of owners, operators, employees and agents.

(a) For the purpose of ensuring compliance with this article, any state or local building, fire, electrical, health or neighborhood and community services inspector or any officer of the Kansas City, Missouri Police Department is hereby authorized to enter, inspect, examine and survey, at all reasonable times, any motion picture arcade booth establishment.

(b) The owner, operator, employees and agents of any motion picture arcade booth establishment shall give the above-described enforcement officials entry and access to the premises, and its motion picture arcade booths, at all reasonable times, for the purpose of such inspection, examination and survey. It shall be unlawful for any owner, operator, employee or agent of any motion picture arcade booth establishment to deny entry or access to the premises to, interfere with, or otherwise impede any such enforcement official who is carrying out any such inspection, examination and survey.

Sec. 12-280. Motion picture arcade booth establishments; violations.

It shall be unlawful for any person to violate any of the requirements or duties set out in Sections 12-275 through and including 12-279, Code of Ordinances.

Sec. 12-281. Motion picture arcade booth establishments; enforcement.

The director of the neighborhood and community services department, or an authorized representative, and any officer of the Kansas City, Missouri Police Department are hereby authorized and directed to enforce all of the provisions of this article. The provisions of this article may be enforced through one or more of the following proceedings:

(a) Administrative enforcement.

(1) The director of the neighborhood and community services department, or an authorized representative, may issue a written notice and order to the owner, operator

or person in charge of a motion picture arcade booth establishment of any violation

of the requirements or duties set out in this article requiring that at least one side of

each motion picture arcade booth shall be completely open, that the surface of all

walls between booths be covered with metal and maintained free of holes or other

structural openings, and that no more than one person occupy a booth at any one

time. The notice and order shall set forth the alleged violations of this article,

describe the premises where the violations are alleged to exist and specify a period

of 48 hours from the time of service of the notice and order for the correction of any

violation alleged.

(2) The notice and order shall be served upon the owner, operator or person in charge of the motion picture arcade booth establishment by delivery of a copy of the notice and

order to such owner, operator or person in charge of a motion picture arcade booth

establishment or by leaving such copy at their usual place of abode with a member

of the family over the age of 15 years or by mail addressed to the owner, operator or

person in charge or agent thereof. If service is by mail, the notice and order will be

deemed to have been served seventy two hours after it was placed in the U.S. Mail.

If one or more persons to whom such notice and order is addressed cannot be found

after diligent effort to do so, service may be made upon such person by posting the

notice and order in or about the premises described in the notice and order, and by

causing such notice and order to be published in a newspaper of general publication.

If service is by posting and publication, the notice and order will be deemed to have

been served seventy two hours posting or publication, whichever occurs later.

(3) If the director of neighborhood and community services, or authorized designee, finds that the alleged violation still exists after 48 hours from the time of service, the

director or his designee may order the closure of the portion of the establishment

containing the booths and shall prominently post notice of such closure on the

premises.

(4) The owner, operator or person in charge of the motion picture arcade booth establishment may request a hearing upon receipt of a notice and order. Such request

for a hearing must be in writing. Such hearing shall be before the director or

authorized designee and shall be provided within ten (10) days of the request. The

filing of a written request for a hearing shall stay the director's power to order closure

until after the hearing is concluded and an administrative decision has issued finding

a violation of this article. The director may from time to time establish rules

governing the conduct of such hearings.

(b) Municipal court enforcement. With or without the issuance of an administrative written notice and order, the director of the neighborhood and community services department, or an authorized representative, or any officer of the Kansas City, Missouri Police Department may initiate legal proceedings in municipal court for any violation of any of the requirements or duties set out in this article.

(c) Injunction. With or without the issuance of an administrative written notice and order or the initiation of legal proceedings in municipal court, the City may apply to the appropriate court for injunctive relief which would require the correction or abatement of any violation of this article. The initiation or exhaustion of one of these enforcement proceedings shall not be a prerequisite to the initiation of any other of these enforcement proceedings. Different types of enforcement proceedings may be pursued concurrently.

Sec. 12-282. Motion picture arcade booth establishments; penalties.

(a) Any person convicted of a violation of this article shall be punished for that violation by a fine of not less than $150.00, but not more than $500.00, or by imprisonment of not more than 180 days, or by both such fine and imprisonment. All fines imposed shall be in accordance with the minimum fine schedule set out in subsection (c) of this section.

(b) Every day that a violation continues shall be considered a separate offense, for which the violator may be arrested, tried and convicted without necessity of further notice.

(c) Whenever the penalty is to be a fine or a fine and imprisonment, the fine shall be no less than the minimum amount set out in the following schedule:

(1) First offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $150.00

(2) Second offense . . . . . . . . . . . . . . . . . . . . . . . . . . . $250.00

(3) Third offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $350.00

(4) Fourth and subsequent offenses . . . . . . . . . . . . . . . $500.00

In determining the applicable minimum fine, an offense shall be considered a recurring offense only if the defendant has previously pleaded or been found guilty of violating the same duty or requirement at the same location.

Sec. 12-283. Motion picture arcade booth establishments; severability.

It is hereby declared to be the intention of the City Council that the sections, paragraphs, sentences, clauses and phrases of this article are severable, and if any phrase, clause, sentence, paragraph or section of this article shall be declared unconstitutional or invalid by the valid judgment or decree of any court of competent jurisdiction, such unconstitutionality or invalidity shall not affect any of the remaining phrases, clauses, sentences, paragraphs and sections of this article, since the same would have been enacted by the City Council without the incorporation in this Code of any such unconstitutional or invalid phrase, clause, sentence, paragraph or section.

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Approved as to form and legality:

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Assistant City Attorney