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Legislation #: 981345 Introduction Date: 11/12/1998
Type: Ordinance Effective Date: 12/31/1998
Sponsor: COUNCILMEMBER STACKHAUS
Title: Amending Chapter 12, Code of Ordinances, entitled Amusements and Commercial Recreation by repealing Sections 12-41 through 12-66 of Article II, entitled Adult Entertainment Businesses and Sections 12-71 through 12-90 of Article II. A., entitled Adult Businesses, and Sections 12-275 through 12-283 of Article VII, entitled Motion Picture Arcade Booth Establishments and enacting in lieu thereof a new Article II, entitled Adult Entertainment Businesses .

Legislation History
DateMinutesDescription
11/12/1998

Referred Planning, Zoning & Economic Development Committee

11/18/1998

Hold On Agenda

12/16/1998

Do Pass as a Second Committee Substitute

12/17/1998

Assigned to Third Read Calendar

12/21/1998

Amended

12/21/1998

Passed as Substituted and Amended


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SECOND COMMITTEE SUBSTITUTE FOR ORDINANCE NO. 981345, AS AMENDED

 

Amending Chapter 12, Code of Ordinances, entitled Amusements and Commercial Recreation by repealing Sections 12-41 through 12-66 of Article II, entitled Adult Entertainment Businesses and Sections 12-71 through 12-90 of Article II. A., entitled Adult Businesses, and Sections 12-275 through 12-283 of Article VII, entitled Motion Picture Arcade Booth Establishments and enacting in lieu thereof a new Article II, entitled Adult Entertainment Businesses.

 

WHEREAS, the Mayor and City Council of the City of Kansas City, Missouri, find that a substantial need exists to revise significantly the ordinances regarding adult businesses within the City of Kansas City; and

 

WHEREAS, the Mayor and City Council retained two nationally-known planners, Eric Damian Kelly and Connie Cooper, to conduct a study of certain adult businesses in Kansas City; and

 

WHEREAS, Kelly and Cooper have completed that study, including the following parts:

 

Part 1: Analysis of Ordinances of Twenty Other Local Governments

Part 2: Analysis of Businesses in Kansas City

Part 3: Survey of Residents and Business Managers

Part 4: Recommendations and Conclusions

Part 5: Policy Recommendations; and,

 

WHEREAS, as part of that study, Kelly and Cooper examined the regulatory practices of other communities and examined the studies of sexually-oriented businesses from those cities, incorporating those as part of their study for Kansas City:

 

Appendix A: Ordinances and Related Statutes from Twenty Other Local Governments

Appendix B1: Fort Worth, Texas, Adult Use Study

Appendix B2: Indianapolis, Indiana, Adult Use Study

Appendix B3: Newport News, Virginia, Adult Use Study

Appendix B4: St. Paul, Minnesota, Adult Use Study

Appendix B5: Adult Use Studies from Phoenix, Arizona; Tucson, Arizona; and Seattle, Washington

Appendix B6: Whittier, California, Adult Use Study and Adult Use Manual of Massachusetts Chapter, APA & City Solicitors & Town Counsel Assoc.

Appendix B7: Austin, Texas, Adult Use Study

Appendix B8: Denver, Colorado, Adult Use Study; and

 

WHEREAS, the United States Supreme Court in City of Renton v. Playtime Theater, Inc., 475 U.S. 41 (1986) held that local governments may rely upon the experiences of other cities as well as on its own studies in enacting local legislation to regulate adult businesses; and

 


WHEREAS, the United States Supreme Court in Renton and other cases has held that the city may regulate such uses through content-neutral, time, place, and manner restrictions, so long as said regulations are designed to serve the government interest and do not unreasonably omit avenues of communication, and are aimed not at the content of protected speech within said establishments but rather at the secondary effects of said establishments on the surrounding communities; and

 

WHEREAS, Kelly and Cooper, in their studies for Kansas City, found several distinct types of land uses involving the presentation of similar sexually-oriented material in different places and mannersmost specifically in different land use contexts; and

 

WHEREAS, Kelly and Cooper in their studies further found that some businesses offering sexually-oriented materials create undesirable secondary effects and are disruptive to the established land-use patterns of the city, while other businesses, offering essentially similar material in a different place and manner, are consistent with the citys land-use patterns and regulations and do not have such undesirable second effects; and

 

WHEREAS, the Mayor and City Council of the City of Kansas City have considered said secondary effects of these adult businesses in the past when regulating said businesses and thereby reiterate their grave concern over secondary effects from said adult businesses as one of the bases for regulating these businesses; and

 

WHEREAS, the Mayor and City Council have, in the course of adopting earlier regulations on this topic, obtained copies of studies regarding secondary effects of adult businesses on surrounding communities from the cities of Phoenix, Arizona; Tucson, Arizona; Garden Grove, California; Los Angeles, California; Whittier, California; Indianapolis, Indiana; Minneapolis, Minnesota; St. Paul, Minnesota; Cleveland, Ohio; Oklahoma City, Oklahoma; Amarillo, Texas; Austin, Texas; Beaumont, Texas; Houston, Texas; Newport News, Virginia; and Seattle, Washington; and

 

WHEREAS, the Mayor and City Council find that these studies are of direct relevance to the problems confronting the citizens of the City of Kansas City regarding the secondary effects on the surrounding communities of said adult business uses and believe that the regulations which currently exist and which follow are aimed at reducing these pernicious secondary effects; and

 

WHEREAS, the Mayor and City Council have provided a forum for testimony and comments from the public and from affected businesses regarding these proposed regulations and have reviewed the evidence presented at public hearing from the public, and other interested parties which evidence further establishes a direct link between adult businesses and secondary effects upon surrounding communities that are deleterious to said community and establish further need for regulations of these adult business establishments; and

 

WHEREAS, the Mayor and City Council have determined that it is essential to the public health, safety and welfare and to the implementation of the citys comprehensive and land use plans that it adopt revised licensing and zoning ordinances for adult businesses and for other businesses carrying adult materials; NOW, THEREFORE,

 

BE IT ORDAINED BY THE COUNCIL OF KANSAS CITY:

 

Section A. That Chapter 12, Code of Ordinances, entitled Amusements and Commercial Recreation, is hereby amended by repealing Sections 12-41 through 12-66 of Article II, entitled Adult Entertainment Businesses and Sections 12-71 through 12-90 of Article I. A., entitled Adult Businesses, and Sections 12-275 through 12-283 of Article VII, entitled Motion Picture Arcade Booth Establishments and enacting in lieu thereof a new Article II, entitled Adult Entertainment Businesses to read as follows:

 

ARTICLE II. ADULT ENTERTAINMENT BUSINESSES

 

DIVISION 1. GENERAL

 

Sec. 12-41. Findings.

 

The City Council finds the following:

 

(1) The city has historically used zoning and land use controls to address issues with adult businesses;

 

(2) A recent study for the city found that many of the potential secondary effects and community concerns about adult businesses relate to the operation of those businesses, including particularly the management of the business and the behavior of its customers;

 

(3) Through licensing, it is possible to directly address those operational issues, establishing standards of operation that will provide guidance to responsible operators and that will provide benchmarks against which to measure the performance of all operators of adult businesses;

 

(4) Through licensing, the city can address the business operations rather than the subject-matter of books, films, videos or other media offered therein. The city has consciously not brought under this licensing ordinance some types of businesses which offer significant quantity and variety of sexually-oriented books, magazines, videos and other media, because such businesses do not have the characteristics of adult businesses, as identified through the citys own studies;

 

(5) It is appropriate and necessary to continue to address certain land-use issues related to such businesses through the zoning ordinance but also to address separately the operating issues addressed through this ordinance;

(6) The requirements of this Article advance the public health, safety and welfare by providing neutral regulations governing the conduct of adult businesses within Kansas City;

 

(7) The license fees required in this Article are nominal fees imposed as necessary regulatory measures designed to help defray the substantial expenses incurred by the city in processing applications for licenses and permits issued under this Article;

 

(8) Certain conduct occurring on premises offering adult live entertainment is detrimental to the public health, safety and general welfare of the citizens of the city, and, therefore, such conduct must be regulated as provided in this Article;

 

(9) Regulation of the adult live entertainment industry is necessary because in the absence of such regulation significant criminal activity has historically and regularly occurred;

 

(10) It is necessary to license entertainers in the adult live entertainment industry to prevent the exploitation of minors, to ensure that each such entertainer is an adult, and to ensure that such entertainers have not assumed a false name, which would make regulation of the entertainer difficult or impossible;

 

(11) It is necessary to have a licensed manager on the premises of establishments offering certain kinds of adult live entertainment and adult entertainment at such times as such establishments are offering adult entertainment so that there will at all necessary times be an individual responsible for the overall operation of the establishment, including the actions of customers, entertainers and other employees;

 

(12) Studies in other cities have shown that businesses providing adult live entertainment are increasingly associated with ongoing prostitution, disruptive conduct and other criminal activity which is currently not subject to effective regulation and which constitutes an immediate threat to the public peace, health and safety; and

 

(13) Studies in other cities have shown that regulation of the adult live entertainment industry is necessary to deter prostitution or high-risk sexual conduct that may be associated with adult live entertainment facilities and to limit the health hazards of syphilis, gonorrhea, herpes, hepatitis-B and HIV/AIDS that may result.

 

Sec. 12-42. Definitions.

 

The following words, terms and phrases, when used in this Article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

 

Adult cabaret means an adult live entertainment facility, or that part of an adult live entertainment facility, which regularly features or otherwise offers to the public, customers or members in a viewing area, any live exhibition, performance or dance by persons whose exhibition, performance or dance is characterized by the exposure of any specified anatomical area, or by specified sexual activities, or who otherwise appear unclothed or in such attire, costume or clothing so as to expose to view specified anatomical areas.

 

Adult entertainment business means any business, commercial establishment, or premises to which the public is permitted or invited operating as an adult motion picture theater; bathhouse; sex shop; and/or motion picture arcade booth establishment.

 

Adult live entertainment business means an adult cabaret.

 

Adult live entertainment facility means any building, structure or facility which contains or is used for commercial entertainment, including theaters used for presenting live presentations, predominantly distinguished or characterized by their principal emphasis on matters depicting, describing or relating to specified sexual activities, and including adult cabaret facilities providing a live presentation, where the customers observe any live presentation, of persons wholly or partially nude with their genitals or pubic region exposed or covered only with transparent covering or, in the case of female persons, with the areola and nipple of the breast exposed or covered only with transparent covering, or observe specified sexual activities.

 

Adult live entertainment facility premises means the bounds of the enclosure of an adult live entertainment facility that is licensed, or part of which is licensed, as an adult live entertainment business.

Adult media means magazines, newspapers, books, videotapes, movies, slides, cd-roms, digital video discs, other devices used to record computer images, or other media which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

 

Adult motion picture theater means a building or portion of a building (including any portion of a building which contains more than 150 square feet) used for presenting motion pictures, movies, videos or other projected images if such building or portion of a building as a prevailing practice excludes minors by virtue of age, or if, as a prevailing practice, the movies, videos or other material presented are distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons therein.

Bathhouse means an establishment or business which provides the services of baths of all kinds, including all forms and methods of hydrotherapy, unless operated by a medial practitioner or professional physical therapist, licensed by the state.

 

Commissioner means the Commissioner of Revenue of Kansas City or his or her designee.

 

Customer means any person who:

 

(1) Is allowed to enter an adult live entertainment or adult entertainment business in return for the payment of an admission fee or any other form of consideration or gratuity;

 

(2) Enters an adult live entertainment or adult entertainment business and purchases, rents or otherwise partakes of any merchandise, goods, entertainment or other services offered therein; or

 

(3) Is a member of and on the premises of an adult live entertainment or adult entertainment business operating as a private club.

 

Director unless otherwise described, means the director of Neighborhood and Community Services, or a person designated by the director.

 

Display publicly means exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item or material in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a street, highway or public sidewalk, or from the property of others, or from any portion of the exhibitor's business, commercial establishment or premises, where items and material other than this material are offered for sale or rent to the public.

 

Employee means any person who renders any service whatsoever to the customers of an adult live entertainment or adult entertainment business or who works in or about an adult live entertainment or adult entertainment business, and who receives compensation for such service or work from the operator or owner of the business or from the customers therein. The term "employee" includes managers, entertainers and independent contractors who work in or at or render any services directly related to the operation of an adult live entertainment business.

 

Entertainer means any person who provides adult live entertainment within an adult live entertainment business, whether or not a fee is charged or accepted for entertainment.

 

Entertainment means any exhibition or dance of any type, pantomime, modeling or any other performance.

 

Explicit sexual material means any pictorial or three dimensional material depicting human masturbation, deviate sexual intercourse, sexual intercourse, direct physical stimulation of unclothed genitals, sadomasochistic abuse, or emphasizing the depiction of post-pubertal human genitals; provided, however, that works of art or anthropological significance are not included in this definition.

 

Gross public floor area means the total area of the building accessible or visible to the public, including showrooms, motion picture theaters, motion picture arcades, service areas, behind-counter areas, storage areas visible from such other areas, restrooms (whether or not labeled public), areas used for cabaret or similar shows (including stage areas), plus aisles, hallways and entryways serving such areas.

 

Manager means any person who manages, directs, administers or is in charge of the affairs or conduct of any portion of any activity, including adult live or adult entertainment, occurring at an adult live entertainment or adult entertainment business.

 

Material means anything printed or written, or any picture, drawing, photograph, motion picture film, videotape or videotape production, or pictorial representation, or any statue or other figure, or any recording or transcription, or any mechanical, chemical, or electrical reproduction, or anything which is or may be used as a means of communication. Material includes undeveloped photographs, molds, printing plates and other latent representational objects.

 

Media means anything printed or written, or any picture, drawing, photograph, motion picture, film, videotape or videotape production, or pictorial representation, or any electrical or electronic reproduction of anything which is or may be used as a means of communication. Media includes but shall not necessarily be limited to books, newspapers, magazines, movies, videos, sound recordings, cd-roms, digital video discs, other magnetic media, and undeveloped pictures.

 

Motion picture arcade booth means any booth, cubicle, stall or compartment which is designed, constructed or used to hold or seat patrons and is used for presenting or viewing motion pictures or viewing publications which are distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas by any photographic, electronic, magnetic tape, digital or other medium (including, but not limited to, film, video, magnetic tape, laser disc, digital video disc, cd rom, digital video discs, books, magazines or periodicals) for observation by patrons therein. The terms booth, arcade booth, preview booth, video arcade booth, and media room shall be synonymous with the term motion picture arcade booth. A motion picture arcade booth shall not mean a theater, movie house, playhouse or a room or enclosure or portion thereof which contains more than 150 square feet. No part of this definition shall be construed to permit more than one person to occupy a motion picture arcade booth at any time.

 

Motion picture arcade booth establishment is any business wherein one or more motion picture arcade booths are located. The terms establishment and video arcade shall be synonymous with motion picture arcade booth establishment.

 

Operator means any person operating, conducting or maintaining an adult live entertainment or adult entertainment business.

 

Owner means the proprietor, if a sole proprietorship; all partners (general and limited), if a partnership; or all officers, directors and persons holding ten percent or more of the outstanding shares, if a corporation.

 

Person means any individual, partnership, corporation, trust, incorporated or unincorporated association, joint venture, governmental entity, or other entity or group of persons, however organized.

 

Primary live entertainment means that entertainment which characterizes the business, as determined (if necessary) from a pattern of advertising as well as actual performances.

 

Public place means any area generally visible to public view, and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots and automobiles, whether moving or not.

Sadomasochistic practices mean flagellation or torture by or upon a person clothed or naked, or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed or naked.

 

Sex shop means a business offering goods for sale or rent and that meets any of the following tests:

 

(1) It offers for sale items from any two (2) of the following categories: adult media sexually-oriented toys or novelties; lingerie; leather goods marketed or presented in a context to suggest their use for sadomasochistic practices; and the combination of such items constitutes more than ten percent (10%) of the stock in trade of the business or occupies more than ten percent (10%) of the gross public floor area of the business; or

 

(2) More than five percent (5%) of its stock in trade of the business consists of sexually-oriented toys or novelties; or

 

(3) More than five percent (5%) of its gross public floor area of the business is devoted to the display of sexually-oriented toys or novelties.

 

Sexually-oriented toys or novelties mean instruments, devices or paraphernalia either designed as representations of human genital organs or female breasts, or designed or marketed primarily for use to stimulate human genital organs.

 

Specified anatomical areas means and includes: (1) less than completely and opaquely covered: human genitals, pubic region, buttock and female breast below a point immediately above the top of the areola; and (2) human male genitals in a discernibly turgid state, even if completely and opaquely covered.

 


Specified sexual activities means sexual conduct, being actual or simulated, normal or perverted acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact, in an act of apparent sexual stimulation or gratification, with a person's clothed or unclothed genitals, pubic area or buttocks, or the breast of a female; or any sadomasochistic abuse or acts including animals or any latent objects in an act of apparent sexual stimulation or gratification, as such terms are defined in the pornography and related offenses chapter of the state's criminal code (RSMo ch. 573).

 

Viewing area means the area where a customer or member would ordinarily be positioned while watching an exhibition, performance or dance.

 

Sec. 12-43. Applicability of other regulations; conflicting provisions.

 

(a) The licenses provided for in this Article are subject to the general provisions of this Article and of chapter 40 of this Code. In the event of a conflict between the provisions of this Article and other parts of this chapter or Code, the provisions of this Article shall control.

 

(b) The licenses and fees required by this Article shall be in addition to any other licenses and fees required by this Code, except that a person issued a license or permit under the provisions of chapter 10 shall not be required to obtain a license or permit under the provisions of this Article.

 

(c) The license and permit fees required by this Article apply only to the costs of investigating and processing the applications for those licenses and permits.

 

Sec. 12-44. Business license required.

 

(a) It shall be unlawful for any person to operate or maintain an adult live entertainment or adult entertainment business in the city unless the owner, operator or lessee thereof has obtained from the director a license to do so, to be designated an "adult live entertainment business license", or "adult entertainment business license" as the case may be or to operate the business after the license has been revoked or while the license is suspended.

 

(b) It shall be unlawful for any entertainer, employee or manager to knowingly perform any service or entertainment directly related to the operation of an unlicensed adult live entertainment business, or an unlicensed adult entertainment business.

 

(c) It shall be prima facie evidence that any adult live entertainment or adult entertainment business that fails to have posted, in the manner required by this Article, an adult live entertainment or adult entertainment business license, has not obtained a license. It shall be prima facie evidence that any entertainer, employee or manager who performs any service or entertainment in an adult live entertainment business or adult entertainment business in which a license is not posted in the manner required by this Article had knowledge that the business was not licensed.

 

Sec. 12-45. Permit required for managers and entertainers.

 

It shall be unlawful for any person to work as an entertainer or manager at an adult live entertainment business or as a manager at any adult entertainment business without having first obtained from the commissioner a permit to do so, to be designated as an "adult entertainer's permit", an "adult live entertainment manager's permit", or an adult entertainment managers permit, respectively, or to work as an entertainer or manager at such business after such person's permit has been revoked or while such person's permit is suspended.

 

Sec. 12-46. License and permit classifications and fees.

 

(a) The license or permit year for all fees required for an adult live entertainment business license or permit shall be from each December 1 through November 30. The application for a license or permit shall be accompanied by payment in full of the fee stated in this section, by cash, certified or cashier's check or money order, and no application shall be considered complete until the fee is paid. The fee shall not be refunded under any circumstances.

 

(b) The classification of adult live entertainment business licenses, and the fees for each, shall be as follows:

 

(1) New adult cabaret license, $500.00 per year; renewal of adult cabaret license, $35.00 per year.

 

(c) The classification of permits for an adult live entertainment business, and the fees for each, shall be as follows:

 

(1) Adult live entertainment manager's permit, $30.00 per year.

 

(2) Adult entertainer's permit, $30.00 per year.

 

(d) The license year for the fee required for an adult entertainment license or permit shall be from each February 1 through January 31. The application for a license shall be accompanied by payment in full of the fee stated in this section, by cash, certified or cashier's check or money order, and no application shall be considered complete until such fee is paid. Such fee shall not be refunded under any circumstances.

 

(e) The classification of adult entertainment business licenses, and the fees for each, shall be as follows:

 

(1) New adult entertainment business license, $500.00 per year; renewal of adult entertainment business license $35.00 per year.

 

(f) The classification of a permit for an adult entertainment business and the fee for the permit shall be as follows:

 

(1) Adult entertainment managers permit, $30.00 per year.

 

(g) The fees set forth in this section shall not be prorated.

 

Sec. 12- 47. Effective date of Article; existing adult entertainment businesses and existing

live entertainment businesses.

 

(a) Licenses and permits issued under the provisions of Article II of this Chapter prior to its amendment by Second Committee Substitute for Ordinance No. 981345 shall be valid as though issued under this Article and shall remain in full force and effect, subject to the following:

 

(1) Those licenses shall be renewable under the provisions of this Article.

 

(2) Those licenses shall be subject to the affirmative duties, operational standards, criteria for suspension and revocation and other substantive provisions of this Article in effect on January 1, 1999.

 

(3) Those licenses and permits for adult live entertainment businesses, adult entertainers and adult live entertainment managers which have been issued for the license and permit year 1998 shall continue to be valid through February 1, 1999.

 

(b) The commissioner shall identify each owner or operator of an adult entertainment business requiring a license hereunder having a valid zoning clearance and a valid occupational license as of December 31, 1998, but not required to hold and not actually holding a license under the provisions of this Article as in effect prior to its amendment by Second Committee Substitute for Ordinance No. 981345. No later than January 15, 1999, the commissioner shall notify each such owner or operator of the enactment of this Article, and shall furnish a copy of the Article to each owner or operator.

 

(c) Any owner or operator of an adult entertainment business that meets the requirements of subsection (b) of this section, and which shall be required to obtain an adult entertainment business license under the provisions of this Article, shall submit a completed application for a license, in the manner provided by this Article, no later than January 30, 1999, or if notified subsequent to January 15, 1999 not later than fifteen (15) days after such notification, provided that the requirements of section 12-56 shall not apply to that particular application.

 

(d) If any owner or operator of an adult entertainment business that meets the requirements of subsection (b) of this section, and which shall be required to obtain an adult entertainment business license under the provisions of this Article, shall fail to submit a completed application during the time provided in subsection (c) of this section, the provisions of this Article shall become effective with respect to that business no later than thirty (30) days after notification of the enactment of this Article.

 


(e) The commissioner shall investigate the application from any owner or operator who meets the requirements of subsection (b) of this section, in the manner provided by this Article, and shall approve or disapprove such application in the manner provided in section 12‑58 provided that the requirements of section 12-56 shall not apply to that particular application.

 

(f) If any owner or operator of an adult entertainment business that meets the requirements of subsection (b) of this section shall submit a completed application during the time provided in subsection (c) of this section, the other provisions of this Article shall not become effective until the application is approved, or, if the application is disapproved, until ten days after the disapproval.

 

(g) For any person who does not meet the requirements of subsection (b) of this section, and who shall be required to obtain an adult entertainment business license under the provisions of this Article, the provisions of this Article shall become effective ten days after enactment of this Article.

 

(h) Any owner or operator of a retail adult business required to obtain a license under this Article as a sex shop, which, prior to January 1, 1999, changes its product mix so that it does not meet the definition of sex shop shall not be subject to this Article unless the same business includes as part of the same operation or on the same premises another adult business which is subject to this Article.

 

Sec. 12-48. Inspections.

 

The commissioner or director is hereby empowered to appoint inspectors of adult live entertainment or adult entertainment businesses, and all those businesses shall be open to the inspections of the director or inspectors appointed by him or to any member of the police department at any time during the hours allowed for business and at other reasonable times.

 

Sec. 12-49. Authority to prescribe additional regulations.

 

The commissioner shall have the power to promulgate regulations as may be necessary and feasible for the carrying out of the duties of the office and which are not inconsistent with the provisions of this Article.

 

Sec. 12-50. Penalty for violation of Article.

 

It shall be unlawful for any person to violate any of the provisions of this Article. Upon conviction thereof, such person shall be fined not less than $150.00 and not more than $500.00, or be punished by imprisonment at the municipal correctional institution or in such other place as provided by law, or be punished by both such fine and imprisonment. Each day's violation of, or failure, refusal or neglect to comply with, any provision of this Article shall constitute a separate and distinct offense. The penalties provided in this section are in addition to and are separate from any administrative actions by the commissioner to assess points against a license, suspend, revoke or disapprove renewal of a license or permit issued under this Article, or to order the closure of any portion of a motion picture arcade entertainment containing motion picture arcade booths.

 

Sec. 12-51. Judicial review of orders of commissioner; stay of enforcement of orders.

 

Following the entry of an order by the commissioner assessing points against a licensee, suspending or revoking a license or permit, or disapproving a new or renewal application for a license or permit, such licensee, permittee or applicant may seek judicial review in a manner provided by law. The commissioner shall stay enforcement of such order for a period of time not to exceed thirty (30) days pending the filing or final disposition of proceedings for judicial review.

 

Sec. 12-52. Informal disposition of contested cases.

 

Nothing contained in this Article shall preclude the informal disposition of contested cases by stipulation, consent order or default, or by agreed settlement.

 

Sec. 12-53. 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.

 

DIVISION 2. APPLICATIONS

 

Sec. 12-54. Application for adult live entertainment or adult entertainment business license.

 

(a) All applications for an adult live entertainment or adult entertainment business license shall be submitted in the name of the person proposing to conduct or operate such adult live entertainment business or adult entertainment business on the premises, and shall be signed by the applicant and notarized. All applications shall be submitted to the director on a form supplied by the director, and shall require the following:

 

(1) The name, residence address, home telephone number, date and place of birth of the applicant.

 

(2) The business name, address and telephone number of the business.

 

(3) The names, residence addresses, residence telephone numbers, and dates of births of all partners, if the applicant is a partnership; or, if the applicant is a corporation, of all corporate officers and directors and all shareholders with greater than a ten percent (10%) interest.

 

(4) Addresses of the applicant, or of all partners, or of all corporate officers and directors, for the five (5) years immediately prior to the date of application.

 

(5) A description of the adult live entertainment or adult entertainment business or similar business history of the applicant, or of all partners, or of all corporate officers and directors; and whether any such person or entity, in previously operating in this or another city, county or state, has had a business license revoked or suspended, the reason therefor, and the activity or occupation subjected to such action, suspension or revocation.

 

(6) A description of the business, occupation or employment of the applicant, or of all partners, or of all corporate officers and directors, for the five (5) years immediately preceding the date of application.

 

(7) A statement from the applicant, or from each partner, or from each corporate officer and director, that each such person has not been convicted of, or released from confinement for conviction of, any felony, misdemeanor, ordinance violation or municipal ordinance violation listed in section 12-57(a) (10), during the respective time periods provided in that section.

 

(8) A full set of fingerprints of the applicant and of all partners and of all corporate officers and directors shall be taken by the commissioner or director.

 

(9) Applicant, all partners and all corporate officers shall at the time they are fingerprinted by the commissioner or director, furnish to the director two (2) current photographs of his/her face.

 

(10) If the applicant is a corporation, a certificate of good standing issued by the secretary of state not more than thirty (30) days prior to the submittal of the application.

 

(b) Failure to provide information required by this subsection shall constitute an incomplete application and the application shall not be processed.

 

(c) Determination of Completeness. Within five (5) business days after receiving an application for an adult live entertainment or adult entertainment business license, the commissioner shall determine whether the application is complete, in accordance with the requirements of this section. If the application is not complete, the commissioner shall within two (2) business days after the commissioners determination notify the applicant by using first class mail of the deficiencies in the application.

 

Sec. 12-55. Application for adult live entertainment manager's permit, adult live entertainer's

permit or adult entertainment managers permit.

 

(a) All applications for an adult live entertainment manager's permit, adult live entertainer's permit or adult entertainment managers permit shall be signed by the applicant and notarized. All applications shall be submitted to the director on a form supplied by the director and shall require the following:

 

(1) The applicants name, home address, home telephone number, date and place of birth, and any stage names or nicknames used in entertaining.

 

(2) The name and address of each business at which the applicant intends to work as a manager or entertainer, and an "intent to hire" statement from an adult live entertainment business or an adult entertainment business that is licensed, or that has applied for a license, under the provisions of this Article.

 

(3) A statement from the applicant that he or she has not been convicted of, or released from confinement for conviction of, any felony, misdemeanor, ordinance violation or municipal ordinance violation listed in section 12-57(a) (10), during the respective time periods provided in that section.

 

(4) A full set of fingerprints and a photograph, to be taken by the director, of the applicant.

 

(5) The applicant shall present documentation that he or she has attained the age of eighteen (18) years. Any of the following shall be accepted as documentation of age:

 

a. A motor vehicle operator's license issued by any state bearing the applicant's photograph and date of birth;

 

b. A state-issued identification card bearing the applicant's photograph and date of birth;

 

c. An official passport issued by the United States of America;

 

d. An immigration card issued by the United States of America;

 

e. Any other picture identification issued by a governmental entity; or

 

f. Such other form of identification as the director deems, by rule, to be acceptable.

 

(b) Failure to provide information required by this subsection shall constitute an incomplete application and the application shall not be processed.

 

(c) Determination of Completeness. Within five (5) business days after receiving an application for an adult live entertainment manager's permit, adult entertainer's permit, or an adult entertainment managers permit, the commissioner shall determine whether the application is complete, in accordance with the requirements of this section. If the application is not complete, the commissioner shall within two (2) business days after the commissioners determination notify the applicant by first class mail of the deficiencies in the application.

 

Sec. 12-56. Notification of complete application and schedule for hearing.

 

(a) Within ten (10) days after a new application for an adult live entertainment or adult entertainment business license is determined by the commissioner to be complete, the commissioner shall mail to applicant and all owners of property parcels located in Kansas City, Missouri as defined by Geographic Information Systems maps based on the North American Datum 1983 Missouri West State Plane Coordinate System, maintained by the Public Works Department of the city, within 1000 feet from the proposed premises, as measured from the property lines of the property which is the subject of the application, written notification of that determination.

 

(b) At the same time that the commissioner mails notice to the applicant and property owners, the commissioner shall also provide written notification of the determination of completeness to all neighborhood associations registered with the City Development Department whose boundaries are within 1000 feet from the proposed premises, as measured from the property lines of the property which is the subject of the application.

 

(c) If within ten (10) days after the commissioner mails notice to the property owners entitled to notice under subsection (a) of this section and neighborhood association entitled to notice under subsection (b) of this section, that the application for an adult live entertainment or adult entertainment business license is complete, any such owner or neighborhood association files with the commissioner a written request for a hearing before the commissioner on whether the applicant has satisfied the criterion set forth in section 12-57(a), which shall state a reason(s) that a particular criteria has not been satisfied, then the commissioner shall, within five (5) days of receipt of a timely request, mail a notice of a hearing to the applicant and any property owner or neighborhood association requesting the hearing and the notice, shall include the date, time and place for the hearing before the commissioner. The date for the hearing shall be not less than thirty (30) days nor more than forty (40) days following the determination that the application is complete.

 

(d) If a hearing is requested by any property owner entitled to notice under subsection (a) of this section or any neighborhood association entitled to notice under subsection (b) of this section, then the commissioner shall hear matters raised by those property owner(s) and those neighborhood association(s), if any, in objection to issuance of the license, but the commissioner may not deny issues of the license without finding that one or more of the criteria set forth in section 12-57(a) have not been satisfied.

 

DIVISION 3. ISSUANCE

 

Sec. 12-57. Criteria for issuance of license or permit.

 

(a) Business license. The director shall investigate the application for an adult live entertainment or adult entertainment business license and report the findings of the investigation to the commissioner, who shall issue the license authorized by this Article if the commissioner finds that each of the following conditions is met without exception:

 

(1) Applicant, or all partners, officers, directors, employees, managers or any shareholders of applicant with greater than a ten percent (10%) interest, are over eighteen (18) years of age;

 

(2) Applicant (and, if an individual, applicants spouse) is current in all taxes, fees and other amounts due to the city on any account, for any purpose;

 

(3) The application is complete and appears to be truthful and accurate;

 

(4) The application is accompanied by the required fee;

 

(5) The proposed premises are the subject of a zoning determination or a certificate of legal nonconformance showing that the use of the premises for the proposed business is permitted under the zoning ordinance;

 

(6) The proposed premises comply with the separation requirements set forth in applicable zoning districts or hold a valid certificate of legal nonconformance indicating that the business is not subject to such separation requirements because the proposed premises existed at this location before the establishment of the separation requirements;

 

(7) The proposed premises meets all other applicable health, safety, building and fire codes and ordinances of the city;

 

(8) The applicant provides evidence that the applicant owns the premises or has a lease giving it control of the premises through the proposed licensing period;

 

(9) No applicant, or any spouse, partner, officer, or director of the applicant, or shareholder with greater than a ten percent (10%) interest in applicant, has been convicted of a violation of this Article or has had a license under this Article revoked at any time in the two years immediately preceding the date of application;

 

(10) No applicant, or any spouse, partner, officer, or director of the applicant, or shareholder with greater than a ten percent (10%) interest in applicant, has, within the previous ten (10) years been convicted of, or remains under confinement for, any felony, misdemeanor, ordinance violation or municipal ordinance violation involving sexual offenses, prostitution, sexual abuse of a child, or pornography and related offenses as defined in the states criminal code, RSMo. Chs 556-600, or similar statutes in other states, or controlled substance or illegal drugs or narcotics offenses, as described in the states comprehensive drug control act; and

 

(11) The applicant has provided the commissioner with a designated agent for service who can regularly be found in Kansas City, Missouri, during normal business hours.

(b) Burden of Proof. The applicant shall have the burden of proof on each of the criterion contained in subsection (a) of this section except that the applicants burden regarding criterion contained in subsections (a)(5), (7), (9) and (10) of this section shall be limited to completing forms provided by the director.

 

(c) Manager's or entertainer's permit. The director shall investigate the application and report the findings of the investigation to the commissioner who shall issue any applicable permit authorized by this Article if the commissioner finds that:

 

(1) The applicant has not made any false, misleading or fraudulent statement of material fact in the application for a license, or in the providing of documentation of age, as part of the original permit application or application for renewal thereof.

 

(2) The applicant has attained the age of eighteen (18) years.

 

(3) The applicant has not been convicted of a felony or released from confinement for conviction of a felony, whichever event is later, within five (5) years immediately preceding the application, or has not been convicted of a misdemeanor or released from confinement for conviction of a misdemeanor, whichever event is later, within two years immediately preceding the application, where such felony or misdemeanor involved sexual offenses, prostitution, sexual abuse of a child or pornography and related offenses, as defined in the state's criminal code, RSMo Chs. 556‑‑600, or similar statutes, or controlled substance or illegal drugs or narcotics offenses, as described in the state comprehensive drug control act, or similar statutes, or has not been convicted of a municipal ordinance violation or released from confinement for conviction of a municipal ordinance violation, whichever event is later, within two (2) years immediately preceding the application, where such municipal ordinance violation involved indecent exposure, prostitution, or sale of controlled substances or illegal drugs or narcotics.

 

(4) The applicant has not had a license or permit issued under the provisions of this Article revoked within five (5) years immediately preceding the application.

 

Sec. 12-58. Approval or disapproval of application; for adult live entertainment business or

adult entertainment business license and hearing.

(a) The application for an adult live entertainment or adult entertainment business license authorized under this Article shall be approved or disapproved within fifty (50) days from the date of the commissioners determination that the application is complete, unless the applicant agrees in writing to an extension of that time period. If a license application is disapproved, the commissioner shall notify the applicant in person, or by registered or certified mail to the applicants last known address, and shall state the basis for such disapproval.

 

(b) If within ten (10) days after the commissioner mails notice to the applicant that the application has been disapproved, the applicant for an adult live entertainment or adult entertainment business license files with the commissioner a written request for a hearing before the commissioner on whether the applicant has satisfied the criterion set forth in section 12-57, then the commissioner shall, within five (5) days of receipt of a timely request, mail a notice of a hearing to the applicant, which shall include the date, time and place for the hearing before the commissioner. The date for the hearing shall be not less than thirty (30) days nor more than forty (40) days following the filing of the request for a hearing under this section, unless the aggrieved party requesting the hearing agrees to extend the time for the hearing.

 

Sec. 12-59. Manager's or entertainer's permit; approval, disapproval of application; review.

 

(a) The application for a manager's or entertainer's permit authorized under this Article shall be approved or disapproved within thirty (30) days from the date of filing a completed application which complies with the requirements of this Article, unless the applicant agrees in writing to an extension of such time period. Pending the approval or disapproval of a completed permit application, the manager or entertainer shall be provided a temporary permit to be a manager or entertainer. The temporary permit shall automatically expire and become null and void upon the approval or disapproval of a permit. Any manager or entertainer issued a temporary permit shall comply with the provisions of this Article, and the temporary permit shall be withdrawn by the commissioner if the permittee violates any provisions of this Article. Additionally, any manager or entertainer issued a temporary permit shall be subject to the penalty provisions provided in this Article. It shall be the duty of the director to request criminal records and to investigate other information required by the permit application. If a permit application is disapproved, the commissioner shall notify the applicant, in person, or by registered or certified mail to the applicant's last known address, and shall state the basis for the disapproval.

 

(b) Judicial review. An applicant for a manager's or entertainer's permit authorized under this Article aggrieved by the decision of the commissioner to approve or disapprove a permit may seek judicial review in a manner provided by law.

 

DIVISION 4. CONDUCT OF BUSINESS

 

Sec. 12-60. Display of license or permit.

 

(a) Every person, corporation, partnership or association licensed under this Article as an adult live entertainment business or an adult entertainment business shall post the license in a conspicuous place and manner on the business premises.

 

(b) Every adult entertainer, adult live entertainment manager or adult entertainment manager shall have his or her permit located on the adult live entertainment business premises or the adult entertainment business premises so it shall be readily available for inspection by city authorities responsible for enforcement of this Article. If the permit is a temporary permit, the form of identification presented as part of the application for the permit shall be stated by the commissioner on the face of the permit, and the identification must be on file with the adult live entertainment manager on duty or the adult entertainment manager on duty at any time the temporary permittee shall be working on the premises.

 

Sec. 12-61. Hours of operation.

 

(a) It shall be unlawful for any adult cabaret to be conducted, operated or otherwise open to the public, customers or members between the hours of 3:00 a.m. and 6:00 a.m.

 

(b) It shall be unlawful for any motion picture arcade booth to be operated or otherwise open to the public, customers or members between the hours of 1:30 am. and 6:00 am.

Sec. 12-62. Compliance with other regulations.

 

It shall be the duty of an adult live entertainment business licensee and adult entertainment business licensee to comply with the building codes, zoning, fire, health and property maintenance ordinances of the city and with regulations of the departments of the city. Failure to continue compliance with the ordinances or regulations after written notification of noncompliance has been delivered to the business by the city may be a basis for suspension, revocation or nonrenewal of the license.

 

Sec. 12-63. Licensees duties to monitor business and premises.

 

(a) It is and shall be the affirmative duty of each licensee to:

 

(1) Allow the business to be open to customers only when there is a designated manager on duty who is licensed as required under Section 12-45; the name of the manager on duty at any time shall be prominently displayed at or near the managers station;

 

(2) Ensure that all lighting, including theater runway/aisles lighting, required by this Article actually operates, with working bulbs, turned on, during all hours when the business is open;

 

(3) Post and enforce a no loitering policy on the business premises, including parking areas and other exterior parts of the business premises;

(4) Prevent and ensure that no sexual activity takes place on the business premises, whether in or out of public view;

 

(5) Prevent and ensure that no prostitution or solicitation for prostitution takes place on the business premises, whether in or out of public view;

 

(6) Prevent and ensure that no gambling takes place on the business premises;

 

(7) Prevent any unlawful sale, distribution, delivery or use of controlled substances, illegal drugs or narcotics on the business premises;

 

(8) Prevent any sale, distribution, delivery or use of any alcoholic beverages of any kind on the business premises;

 

(9) Prevent persons under eighteen (18) years of age from entering the business premises or the portion or portions thereof which contain adult media, adult live entertainment or sexually-oriented toys and novelties;

 

(10) Prevent the display of sexually explicit materials in a public place;

 

(11) Prevent and ensure any person from engaging in specified sexual activities or causing any bodily discharge of semen, urine or feces while in any adult entertainment business or any adult live entertainment business;

 

(12) Allow law officers, code enforcement officers, health officers or other representatives of the city or other public agencies full access to the business premises at anytime during business hours for purposes of inspection to ensure compliance with this Article and other applicable laws; and

 

(13) Ensure that doors in adult motion picture theaters are designed and maintained so that they cannot be locked by customers or otherwise locked from the inside while the business is open. This shall not preclude a management-controlled locking system used to limit access to the theater portion of the premises, provided that at any time the manager on duty can release the lock at her or his own volition or at the request of a law enforcement officer or city inspector and ensure that lobbies remain unlocked at all times that the adult motion picture theater is in operation.

 

(b) It shall be unlawful for any person to engage in any specified sexual activities including the discharge of semen while in any adult entertainment business or adult live entertainment business. It shall be unlawful for any person to cause any bodily discharge of semen, urine or feces while in any adult entertainment business or any adult live entertainment business, excepting the discharge of urine or feces in a bathroom or restroom meeting the citys building code.

 

(c) No licensee or employee or agent of a licensee of a business licensed under this Article shall warn or inform any person on the business premises of the presence of any city investigator or any law enforcement officer in connection with the enforcement of the provisions of this Article, by any means, including but not limited to any electrical, mechanical or other device whether or not the device is constructed, installed or located on the premises.

 

(d) The license and the standards of operation, affirmative duties and other requirements of this Article shall apply to an entire business operation and its premises, regardless of the fact that some parts of the business operation, if conducted separately at a different location, would not be subject to licensing under this Article.

 

(e) Failure to comply with the requirements of this section and all other requirements of this Article is unlawful and a violation of this Article and shall be grounds for suspension, revocation or nonrenewal of a license pursuant to the provisions contained in section 12-67.

 

Sec. 12-64. Standards of conduct and operation for adult cabarets.

 

(a) The following standards of conduct must be adhered to by employees of any adult cabaret while on the adult live entertainment business premises:

 

(1) Dancing or other live entertainment distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas for observation by customers shall take place only in a location and manner meeting all of the following conditions:

 

a. In a theater or open room of at least six hundred (600) square feet;

 

b. On a stage, elevated at least twenty four (24) inches above the level on which patrons sit or stand; and

 

c. With a horizontal separation of at least three (3) feet between the performing area, as defined by the edge of the stage or by a rail or other physical barrier on the stage, and the nearest space to which customers shall have access.

 

(2) No employee or entertainer shall be unclothed or in such less than opaque and complete attire, costume or clothing so as to expose to view any specified anatomical area, unless separated at least three (3) feet from the nearest customer.

 

(3) No employee or entertainer shall perform:

 

a. Any specified sexual activities; or

 

b. The displaying of any specified anatomical area;

except as provided for in subsection (a)(1) and (2) of this section.

 

(4) No employee or entertainer who is not separated from any and all customers as provided in subsection (a)(2) of this section shall be unclothed or in less than opaque and complete attire, costume or clothing as described in subsection (a)(2) of this section, except in an area of the business premises not open to customers.

 

(5) No employee or entertainer shall knowingly touch any specified anatomical area of another person, or knowingly permit another person to touch any specified anatomical area of the employee or entertainer. No employee or entertainer shall knowingly fondle or caress any specified anatomical area of another person, whether the area is clothed, unclothed, covered or exposed, or knowingly permit another person to fondle or caress any specified anatomical area of such employee or entertainer, whether the specified anatomical area is clothed, unclothed, covered or exposed.

 

(6) No employee or entertainer shall wear or use any device or covering exposed to view which simulates any specified anatomical area.

 

(7) No employee or entertainer shall use artificial devices or inanimate objects to depict any of the prohibited activities described in this subsection.

 

(8) No entertainer of any adult cabaret shall be visible from any public place during the hours of his or her employment, or apparent hours of his or her employment, while the entertainer is unclothed or in such attire, costume or clothing to expose to view any specified anatomical area, or while performing any entertainment, either while clothed or unclothed.

 

(9) No entertainer shall solicit, demand or receive any payment or gratuity from any customer for any act prohibited by this Article.

 

(10) No entertainer shall receive any payment or gratuity from any customer for entertainment, except as follows:

 

a. While the entertainer is on the stage as provided in subsection (a)(1) of this section, a customer may place the payment or gratuity into a box located between the stage and the horizontal separation described in section 12-64 (a)(1)c; or

 

b. While such entertainer is not on the stage, and is clothed so as to not expose to view any specified anatomical areas, a customer may either place the payment or gratuity into the entertainer's hand, or under a leg garter worn by the entertainer at least four inches below the bottom of the pubic region.

(b) At any adult cabaret, the following are required:

 

(1) A sign, on which upper-case letters shall be at least two (2) inches high, and lower-case letters shall be at least one (1) inch high, shall be conspicuously displayed in the common area at the principal entrance of the premises, and shall read as follows:

 

THIS ADULT LIVE ENTERTAINMENT BUSINESS IS REGULATED BY THE CITY OF KANSAS CITY. ENTERTAINERS ARE:

 

a. Not permitted to engage in any type of sexual activities on the business premises, or in prostitution.

 

b. Not permitted to be unclothed or in less than opaque or complete attire, costume or clothing so as to expose to view any portion of the breasts below the top of the areola, or any portion of the pubic region, buttocks or genitals, unless separated at least three (3) feet from the nearest customer and upon a stage at least twenty four (24) inches above the immediate floor level.

 

c. Not permitted to demand or collect any payment or gratuity from any customer for entertainment, except as follows:

 

i. While the entertainer is on the stage, by placing the payment or gratuity into the box affixed to the stage; or

 

ii. While the entertainer is not on the stage, by either placing the payment or gratuity into the entertainer's hand, or under the entertainer's leg garter.

 

(2) Neither any entertainment nor any photograph, drawing, sketch or other pictorial or graphic representation thereof displaying any specified anatomical area shall be visible from a public place.

 

(3) The premises shall be equipped with overhead lighting of sufficient intensity to illuminate every place to which customers are permitted access at an illumination of not less than 1.0 footcandle as measured at the floor level, and the illumination must be maintained at all times that any customer is present in or on the premises.

 

Sec. 12-65. Responsibilities of manager.

 

(a) An adult live entertainment manager shall be on duty at an adult live entertainment business at all times adult live entertainment is being provided or that customers are on the premises. The name of the manager on duty shall be prominently posted during business hours.

(b) It shall be the responsibility of the manager to verify that any person who provides adult live entertainment within the premises possesses a current and valid adult entertainer's permit, and that such permit is posted in the manner required by this Article.

 

(c) An adult entertainment manager shall be on duty at an adult entertainment business at all times that the business is open. The name of the manager on duty shall be prominently posted during business hours.

 

Sec. 12-66. Location and Manner of Presenting Certain Videos or Motion Pictures.

 

(a) No motion picture or video which depicts as a prevailing practice, the movies, videos or other material distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas for observation by patrons therein shall be shown for a fee (whether collected per feature, per unit of time or as a general admission charge to a facility) in any space of less than 150 square feet.

 

(b) This section does not apply to the showing of informational videos by professionals licensed by the State of Missouri to clients who pay a fee for service, where the showing of the videos is incidental to a professional service and not the subject of separate consideration from the patron.

(c) Doors in adult motion picture theaters shall be designed so that they cannot be locked by customers or otherwise locked from the inside while the business is open. This shall not preclude a management-controlled locking system used to limit access to the theater portion of the premises, provided that at any time the manager on duty can release the lock at her or his own volition or at the request of a law enforcement officer or city inspector and lobbies shall remain unlocked at all times that the adult motion picture theater is in operation.

 

(d) All aisles in adult motion picture theaters shall have theater runway/aisle lighting which illuminates the entire floor surface of the aisle at a level not less than 0.2 footcandle.

 

(e) Any motion picture arcade booth establishment or motion picture arcade booth which is the subject of a Certificate of Legal Nonconformance shall be exempt from this section as a legal nonconforming use and shall be subject to the provisions of section 12-67.

 

Sec. 12-67. Operation of Motion Picture Arcade Establishments.

 

(a) If any motion picture arcade booth exists on the licensed premises, the licensee shall have the following additional affirmative duties in the operation of the business:

 

(1) Ensure that each motion picture arcade booth shall have at least one side which is completely open to adjacent public rooms or adjacent hallways and meets all of the following conditions:

a. The adjacent hallway shall meet the requirements of the city building code and the adjacent hallway must serve more than one motion picture arcade booth; provided however, that this requirement shall not apply to motion picture arcade booths located in any structure in an overlay C-X zoning district;

 

b. The open side of each motion picture arcade booth shall be completely open to adjacent public rooms or adjacent hallways and the open side of each motion picture arcade booth shall be not less than thirty (30) inches in width, and not less than eighty-four (84) inches in height as measured from the level of the floor of the booth;

 

c. The entire floor area of the interior of each motion picture arcade booth shall have a uniform elevation and the elevation of the entire floor area of the interior of each motion picture arcade booth shall be uniform with the floor elevation of adjacent public rooms or adjacent hallways;

 

d. No furniture of any kind shall be positioned in a booth with the exception of one chair or seating platform meeting the requirements of this section;

 

e. A chair or seating platform authorized under this section to be used in a booth shall rest on the floor of the booth and the surface of the seat, including any cushion or other padding on the chair or seating platform, shall not exceed eighteen (18) inches in height as measured from the surface of the floor;

 

f. The back rest of any chair or seating platform used in a booth shall not exceed thirty-six (36) inches in height as measured from the surface of the floor, nor exceed eighteen (18) inches in width;

 

g. No chair or seating platform used in a booth shall be equipped with armrests, shades, canopies or any other device which obstructs the view of a persons lap while the person is seated on the chair or seating platform;

 

(2) Ensure that the visibility from adjacent public rooms or adjacent hallways into each motion picture arcade booth through the open side of the booth shall not be obstructed by any temporary or permanent curtain, door, wall, enclosure, chair or other device, except that the open side of a booth while it is in use may have a screening device, no more than one and one-half (1.5) inches thick, which when closed spans any distance up to the entire width of the open side of the booth so long as the screening device is positioned so that no part of the top of the device exceeds fifty-eight (58) inches in height as measured from the surface of the floor and the bottom of the screening device shall be not less than forty (40) inches above the surface of the floor; provided further that if the open side of the motion picture arcade booth is fifty-eight (58) inches or more in width, then the top of the screening device shall not exceed sixty-two (62) inches in height as measured from the surface of the floor and the bottom of the screening device shall be not less than forty (40) inches above the surface of the floor. The screening device shall not have a lock and shall not open into the interior of the booth. No booth shall have any other screening device or shade inside or outside the booth;

 

(3) Ensure that the hallways and public rooms adjacent to motion picture arcade booths shall be illuminated in such a way that the entire area inside each motion picture arcade booth is visible to persons in adjacent public rooms or adjacent hallways. Ensure that the illumination level shall be at a minimum illumination of not less than 1.0 footcandle, as measured at the floor level within the booths;

 

(4) Ensure that no more than one (1) person occupies a motion picture arcade booth at one time and, if more than one person is found in a motion picture arcade booth, that those persons are immediately escorted from the establishment;

 

(5) Ensure that there are no openings in the walls between motion picture arcade booths, which shall include the duty to cover immediately any opening that is found;

 

(6) Ensure that there is at least one employee on duty and situated in the managers station or walking through the hallways adjacent to the motion picture arcade booths at any time that any booth is occupied;

 

 


(7) Ensure that the manager or employee on duty shall make a visual inspection of the inside of each motion picture arcade booth at least once each hour during the hours of operation and maintain a daily log to record the time, a description of the conditions found, and the name and signature of the person who conducted the visual inspection;

 

(8) Ensure that there are no porous surfaces on the floors, walls or seats in any motion picture arcade booth;

 

(9) Ensure that the manager or other employee on duty can actually see the unobstructed interior of every motion picture arcade booth from the managers station or from a hallway accessible to the public. This duty shall include the duty to remove any obstacle blocking the view, to repair any electronic device providing such view and, where the prompt removal or repair is not possible, to close to public use the affected motion picture arcade booth(s) until full visibility of the interior can be reestablished;

(10) Ensure and prevent any person occupying a motion picture arcade booth from engaging in any specified sexual activitiesor causing any bodily discharge of semen, urine or feces while inside the motion picture arcade booth; and

 

(11) Ensure and prevent any video reproduction equipment in any restroom in the establishment.

 

(b) It shall be unlawful for any person occupying a motion picture arcade booth to engage in any specified sexual activities or to cause any bodily discharge of semen, urine or feces while inside the motion picture arcade booth.

 

(c) Establishments with media rooms, preview rooms or other spaces created as exempt from Second Committee Substitute for Ordinance No. 970827 As Amended, hereinafter referred to as Ordinance 970827" as codified at section 12-275 through section 12-283, because they were nominally designed to seat ten (10) or more people, shall have until May 1, 1999, to remove the doors from those rooms and to take other actions to bring those spaces into compliance with section 12-67 (a) (1), (2) and (3). As an alternative, the establishment may replace those rooms with not more than the number of motion picture arcade booths existing in the same space prior to the passage of Ordinance No. 970827, on July 3, 1997, provided that each and every replacement motion picture arcade booth shall fully conform to the requirements of this section, and particularly with section 12-67 (a) (1), (2) and (3); any booths created by conversion under this section shall be treated as legal nonconforming uses, as though they had existed continuously from the date of passage of Ordinance No. 970827 until passage of Second Committee Substitute for Ordinance No. 981345.

 

(d) This section shall apply only to motion picture arcade booth establishments and motion picture arcade booths which qualified as legal nonconforming uses on the date of passage of Second Committee Substitute for Ordinance No. 981345 and which are the subject of an appropriate certificate of legal nonconformance. Any motion picture arcade booth establishment or motion picture arcade booth which is the subject of a certificate of legal nonconformance shall be exempt from the provisions of section 12-66 but shall be subject to the provisions of this section 12-67.

 

DIVISION 5. ENFORCEMENT

 

Sec. 12-68. Hearing for assessment of points, suspension, revocation or nonrenewal of license

and hearing procedures.

 

(a) Scheduling hearings. When the commissioner has information that:

 

(1) Actions of the licensee or other persons on the licensed premises have resulted in the accumulation of more than twelve (12) points within the previous six (6) months under section 12-70(b) of this Article;

 

(2) Actions of the licensee or other persons on the licensed premises have resulted in the accumulation of more than twenty-four (24) points within the previous twelve (12) months under section 12-70(b) of this Article;

 

(3) A licensee has filed a request with the commissioner for a hearing after the assessment of any points under section 12-70 of this Article;

 

(4) Any material representation on the license application was untrue;

 

(5) The licensee, or the licensees spouse, or any officer, director or greater than ten percent (10%) shareholder has another license revoked under this Article;

 

(6) The licensee, or any spouse, partner, officer, director or shareholder with greater than a ten percent (10%) interest in licensee, has, within the previous ten (10) years been convicted of, or remains under confinement for, any felony, misdemeanor, ordinance violation or municipal ordinance violation involving sexual offenses, prostitution, sexual abuse of a child, or pornography and related offenses as defined in the states criminal code, RSMo Chs 556-600, or similar statutes in other states, or controlled substance or illegal drugs or narcotics offenses, as described in the states comprehensive drug control act;

 

(7) The license has been suspended three (3) other times during the previously twelve (12) month period under section 12-71(a)(4) of this Article; or

 

(8) Actions of the licensee or other persons on the licensed premises have resulted in the accumulation of more than thirty-six (36) points within the previous twenty-four (24) months under section 12-71(a)(5) of this Article.

 

then the commissioner shall after no less than ten days' written notice to the licensee hold a hearing in the manner provided in this Article to ascertain all facts in the matter. Notice of the hearing shall be in writing, and shall set forth the reason for the hearing or the complaint against the licensee, and shall be served upon the licensee in person or by registered or certified mail to the licensee's last known address. If the commissioner or director is not able to serve notice upon the licensee in person, and any notice sent by mail is returned by the postal service, the commissioner or director shall cause such notice to be posted at the principal entrance of the adult live entertainment business or adult entertainment business, and the posting shall be a valid means of service. If the commissioner finds and concludes from the evidence that the licensee has violated any of the provisions contained in this section or sections 12-70 or 12-71, he or she may affirm or reverse the assessment of any point against a licensee pursuant to the provisions of sections 12-70 and 12-71, or suspend or revoke the license issued under this Article, or, in the case of a renewal application, refuse to renew the license.

 

(b) Hearing procedures. The following procedures shall apply to all hearings conducted under this section:

 

(1) The burden of proof in a hearing involving the possible assessment of points, suspension, revocation or nonrenewal of a license issued under this Article shall be by a preponderance of the evidence, regardless of the fact that some of the criteria for suspension or revocation refer to acts that may be criminal in nature and that thus would involve a higher standard of proof in another context. The commissioner may take administrative notice of any conviction of a crime or civil infraction pertinent to the proceedings.

 

(2) The applicant, licensee or an owner, as the case may be, shall have full right to be represented by counsel; produce witnesses and other evidence, and to cross examine all witnesses who appear against him. Oral evidence shall be taken only upon oath or affirmation. All proceedings in such hearing shall be recorded and transcribed as required by law. The commissioner may receive evidence relevant to the issues from the applicant, licensee or from other sources. Witnesses may be subpoenaed, and, upon request of any party, the director shall issue subpoenas, and, in a proper case, subpoenas duces tecum, which shall be served and returned as in civil actions in the circuit court.

 

(3) If a hearing is held under the provisions of this Article, then the commissioner shall issue findings of fact and conclusions of law, and an order wherein he may approve or disapprove an application, or dismiss a complaint, affirm or reverse the assessment of points against a licensee, or suspend or revoke a license previously issued, or renew or refuse to renew a license previously issued. The commissioners order shall be served upon the applicant or licensee, as the case may be, in person or by registered or certified mail to the applicants or licensees last known address. If the commissioner is not able to serve the order upon the applicant, licensee, or applicant for renewal license in the manner stated in this subsection, and any notice sent by mail is returned by the postal service, the commissioner shall cause the order to be posted at the principal entrance of the adult live entertainment business or adult entertainment business or facility, and that posting shall be a valid means of service. The commissioners order shall also be posted for thirty (30) days in the citys office of Regulated Industries.

 

(c) Review. Unless otherwise provided in this Article, any applicant or any other person aggrieved by the decision of the commissioner under the provisions of this Article may seek judicial review in a manner provided by law. The cost of a transcript of a hearing before the commissioner shall be paid by the party requesting the transcript.

 

Sec. 12-69. Suspension, revocation or nonrenewal of permit.

 

Whenever the Commissioner has information that:

 

(1) An adult live entertainment manager or an adult entertainment manager has violated, or knowingly allowed or permitted the violation of, any of the provisions of this Article;

 

(2) While acting as an adult live entertainment manager or an adult entertainment manager, there have been recurrent violations of provisions of this Article such that the adult live entertainment manager or an adult entertainment manager knew or should have known that such violations were committed;

 

(3) An adult entertainer has violated any of the provisions of this Article;

 

(4) A permit received by any person under the provisions of this Article was obtained through false statements in the application for such permit, or renewal thereof;

 

(5) A permittee under the provisions of this Article failed to make a complete disclosure of all information in the application for such permit, or renewal thereof; or

 

(6) A permittee has become disqualified from having a permit by a conviction as provided in section 12-57(d)(3);

 

then the commissioner shall hold a hearing in the manner provided in this Article to ascertain all facts in the matter. Notice of such hearing shall be in writing, and shall set forth the reason for the hearing or the complaint against the permittee, and shall be served upon the permittee in person or by registered or certified mail to the permittee's last known address. If the commissioner finds and concludes from the evidence that the permittee has violated any of the provisions listed in this section, he or she may suspend, for a period not to exceed ninety (90) days, or revoke the permit issued under this Article, or, in the case of a renewal application, refuse to renew the permit.

Sec. 12-70. Criteria for Suspension of License.

 

(a) The commissioner shall suspend the license issued under this Article if the commissioner finds that:

 

(1) Actions of the licensee or other persons on the licensed premises have resulted in the accumulation of more than twelve (12) points under subsection (b) of this section within the previous six (6) months; or

 

(2) Actions of the licensee or other persons on the licensed premises have resulted in the accumulation of more than twenty-four (24) points under subsection (b) of this section within the previous twelve (12) months.

 

(b) Point System.

 

(1) One (1) point shall be assessed and accumulated against the license for each violation as determined by the commissioner of the following affirmative duties:

 

a. Ensure that all lighting required by this Article actually operates, with working bulbs, turned on, during all hours when the establishment is open for business;

 

b. Post and enforce a no loitering policy on the premises, including parking areas and other exterior parts of the premises; or

 

c. Comply with other applicable city ordinances, including those related to property maintenance.

 

(2) Two (2) points shall be assessed and accumulated against the license for each violation as determined by the commissioner of the following affirmative duties:

 

a. Prevent and ensure that no gambling takes place on the premises; or

 

b. Violation of section 12- 48.

 

(3) Unless otherwise provided in this section, three (3) points shall be assessed and accumulated against the license for each violation as determined by the commissioner of the following affirmative duties:

 

a. Prevent and ensure that no sexual activity takes place on the premises, whether in or out of public view;

 

b. Prevent and ensure that no prostitution or solicitation for prostitution takes place on the premises, whether in or out of public view;

c. Violation of sections 12-63(a), (b), (c) and (d), 12-64, and 12-67;

 

d. Prevent any unlawful sale, distribution, or delivery or use of controlled substances, illegal drugs or narcotics on the business premises; or

 

e. Prevent persons under eighteen (18) years of age from entering the premises or the portion or portions thereof which contain adult media, adult live entertainment or sexually-oriented toys and novelties.

 

(4) Point totals for actions constituting crimes or misdemeanors under state law or city ordinance shall be reduced by half for any instance in which the commissioner finds that the licensee or an employee of the licensee reported the violation to the Kansas City, Missouri, Police Department before the arrival of the first police car at the business premises, regardless of whether the report is the first report of this instance to the police.

 

(5) Point totals for actions constituting crimes or misdemeanors under state law or city ordinance shall be doubled for any instance in which the commissioner finds that the licensee was directly involved in the violation or that an employee was directly involved and that the licensee reasonably should have known of the involvement.

(c) The commissioner shall mail a written notice to the licensee when any point is assessed against a licensee within (5) days of the assessment of the point(s). If within ten (10) days after mailing notice to the licensee that any point has been assessed against the licensee, the licensee files with the commissioner a written request for a hearing before the commissioner to contest the assessment of any point, then the commissioner shall, within five (5) days of receipt of a timely request, mail a notice of a hearing to the licensee, which shall include the date, time and place for the hearing before the commissioner. The date for the hearing shall be not less than thirty (30) days nor more than forty (40) days following a request for a hearing unless there is due cause.

 

(d) The first suspension shall be for a period of at least five days and not more than ten (10) days; the second suspension within any twelve (12) month period shall be for at least ten (10) days and not more than twenty (20) days; the third suspension during any twelve (12) month period shall be for at least thirty (30) days and not more than sixty (60) days; and any suspension after the third suspension during any twelve (12) month period shall be for at least sixty (60) days and not more than ninety (90) days.

Sec. 12- 71. Criteria for Revocation of License.

 

(a) The commissioner shall revoke a license issued under this Article if the commissioner finds that:

 

(1) Any material representation on the license application was untrue; or

(2) The licensee, or the licensees spouse, or any officer, director or greater than ten percent (10%) shareholder has had another license revoked under this Article; or

 

(3) The licensee, or any spouse, partner, officer, director, or shareholder with greater than a ten percent (10%) interest in licensee, has within the previous ten (10) years been convicted of, or remains under confinement for, any felony or misdemeanor involving sexual offenses, prostitution, sexual abuse of a child, or pornography and related offenses as defined in the states criminal code, RSMo Chs 556-600, or similar statutes in other states, or controlled substance or illegal drugs or narcotics offenses, as described in the states comprehensive drug control act; or

 

(4) The license has been suspended three (3) other times during the previous twelve (12) months; or

 

(5) Actions of the licensee or other persons on the licensed premises have resulted in the accumulation of more than thirty-six (36) points under subsection (b) of section 12-70 within the previous twenty-four (24) months.

 

 

Sec. 12-72. Motion picture arcade booth establishments; additional enforcement.

 

In addition to the enforcement procedures set forth in section 12-51 and sections 12-68 through 12-71 of this Article, the commissioner may enforce the provisions of this Article pertaining to motion picture arcade establishments through the following administrative enforcement procedure:

 

(a) The commissioner or an authorized representative, may issue a written notice and order to the owner, operator, manager 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, that the visibility from adjacent public rooms or adjacent hallways into each motion picture arcade booth through the open side of the booth is not obstructed by any temporary or permanent curtain, door, wall, enclosure, chair or other device, 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 forty-eight (48) hours from the time of service of the notice and order for the correction of any violation alleged.

 

(b) 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, manager 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 fifteen (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 (72) 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 (72) hours posting or publication, whichever occurs later.

 

(c) If the commissioner or authorized designee, finds that the alleged violation still exists after forty-eight (48) hours from the time of service, the commissioner or his designee may order the closure of the portion of the establishment containing the booths and shall prominently post notice of the closure on the premises. Any closure shall remain in effect until the commissioner determines that the violations have been abated. If the owner, operator, manager or person in charge of the establishment believes that the violations have been abated but the commissioner disagrees, the owner, operator, manager or person in charge may request a hearing in writing. The hearing shall be before the commissioner or authorized designee and shall be provided within ten (10) days of receipt of the written request. The commissioner may from time to time establish rules governing the conduct of the hearings.

 

(d) To prevent a stay or closure, the owner, operator, manager or person in charge of the motion picture arcade booth establishment may request a hearing within forty-eight (48) hours of the time of service of a notice and order. The request for a hearing must be in writing. The hearing shall be before the commissioner or authorized designee and shall be provided within ten (10) days of receipt of the written request. The filing of a written request for a hearing shall stay the commissioners power to order closure until after the hearing is concluded and an administrative decision has issued finding a violation enforced under this section. The commissioner may from time to time establish rules governing the conduct of the hearings.

 

Sec. 12-73. Injunction.

 

With or without the issuance of a suspension, revocation, nonrenewal, 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.

 

DIVISION 6. RENEWAL OF LICENSE OR PERMIT

 

Sec. 12-74. Renewal of license or permit.

 

(a) An adult live entertainment business license, adult entertainer permit or an adult live entertainment manager permit issued under this Article may be renewed by making application to the director on application forms provided for that purpose. Licenses and permits shall expire on November 30 of each calendar year, and renewal applications for such licenses or permits shall be submitted between November 1 and November 21 of each calendar year, except that for the license and permit year 1998, the license shall not expire until February 1, 1999.

 

(b) An adult entertainment business license or an adult entertainment manager permit issued under this Article may be renewed by making application to the director on application forms provided for that purpose. Licenses shall expire on January 31 of each calendar year, and renewal applications for such licenses or permits shall be submitted between January 16 and January 31 of each calendar year, except that for the license and permit year 1998, the license shall not expire until February 1, 1999.

 

(c) Upon timely application therefor, an adult live entertainment business license or adult entertainment business license issued under the provisions of this Article shall be renewed by issuance of a new license in the manner provided by sections 12-57 unless the commissioner disapproves the renewal application in the manner provided by section 12-58. However, an applicant for a renewal license shall have no duty to request confirmation of compliance with other city ordinances as required in section 12-57, no inspections by other city departments shall be required unless requested by the commissioner or director and the requirements of section 12-56 shall not apply.

 

(d) Upon timely application therefor, an adult entertainer permit, an adult live entertainment manager permit or an adult entertainment manager permit issued under the provisions of this Article shall be renewed by issuance of a new permit in the manner provided by sections 12-57(d) and 12-59, unless the commissioner disapproves the renewal application in the manner provided by section 12-59.

 

(e) Upon the filing of a timely application for renewal of a license or permit issued under the provisions of this Article, the commissioner shall issue a temporary license or permit to the applicant, which temporary license or permit shall remain in effect until the director has approved or disapproved the application. If a hearing is held as required by section 12-58, the temporary license or permit shall remain in effect until the Commissioner has issued an order following the hearing. However, if any hearing required by section 12-58 is delayed at the request of the applicant, the temporary license or permit issued under the provisions of this subsection shall expire as of the date the hearing was scheduled by the Commissioner, unless the applicant shows good cause for the delay.

 

(f) Any applicant issued a temporary license or permit under the provisions of this section shall comply, or continue to comply, with the provisions of this Article. Additionally, an applicant issued a temporary license or permit under the provisions of this section shall be subject to the penalty provisions provided in this Article.

 

(g) If the application for renewal of a license or permit is not made during the time provided in subsections (a) or (b) of this section, the license or permit shall expire and the licensee or permittee shall cease those activities authorized under this Article and the licensee or permittee shall file a new application and meet all requirements of this Article before engaging in the business or occupations regulated under this Article. An application for renewal filed after the expiration date shall be treated as a new application.

 

Secs. 12-75 -‑‑12-100. Reserved.

 

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Approved as to form and legality:

 

 

 

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Assistant City Attorney