For the purposes of this chapter, the words and phrases used herein shall have the following meanings unless otherwise clearly indicated by the context:
(a) “Adult entertainment establishment” means any commercial establishment which is an adult bookstore, adult motion picture theater, adult hotel, adult motion picture arcade, or erotic dance studio as defined herein.
(b) “Adult bookstore” or “adult video store” means an establishment which as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
(1) Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, video cassettes, or video reproductions, slides, or other visual representations which depict or describe “specified” sexual activities or “specified anatomical areas”; or
(2) Instruments, devices, or paraphernalia which are designed for use in connection with “specified sexual activities.” A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing “specified sexual activities” or “specified anatomical areas” and still be categorized as “adult bookstores” or “adult video store” so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which depict or describe “specified sexual activities” or “specified anatomical areas” (as defined below).
(c) “Adult motion picture theater” means an enclosed building designed for five or more patrons used for presenting any material distinguished or characterized by an emphasis on matters depicting, or relating to “specified sexual activities” or “specified anatomical areas” (as defined below) for observation of patrons therein. The term does not include an adult hotel as defined below.
(d) “Adult motion picture arcade” means any place at which slug or coin operated, electronically or mechanically controlled, still or motion picture machines, projector or other image producing devices are maintained to show images to five or fewer persons per machine at any time, and which presents material which is distinguished or characterized by an emphasis on depicting or describing “specified sexual activities” or “specified anatomical areas” (as defined below) for observation by patrons therein. The term does not include an adult hotel as defined below.
(e) “Adult hotel” means a hotel or motel wherein a substantial or significant portion of the material presented over image-producing devices within individual rooms, that are occupied by guests, are distinguished or characterized by an emphasis on matter depicting or describing “specified sexual activities” or “specified anatomical areas” (as defined below).
(f) “Erotic dance studio” means any place of business open to the public, whether or not a cover charge is assessed, which emphasizes and presents live nude entertainment. Live entertainment includes but is not limited to nude dancing and topless dancing.
(g) “Employee” means any and all persons, including independent contractors who work and or render any services directly related to the operation of an adult entertainment establishment but shall not include independent contractors indirectly related to such operations such as janitorial services, construction, maintenance, pest control, and trash removal.
(h) “Specified anatomical areas” means the following:
(1) Less than completely and opaquely covered:
(A) Human genitals, pubic region;
(B) Anal cleft or cleavage of the buttocks; and female breasts below a point immediately above the top of the areola;
(2) Human male genitals in a discernible turgid state, even if completely and opaquely covered.
(i) “Specific sexual activities” means the following:
(1) Human genitals in a state of sexual stimulation or arousal;
(2) Acts of human masturbation, sexual intercourse or sodomy;
(3) Fondling or other erotic touching of human genitals, pubic region, buttocks or female breasts with the intent to arouse or gratify the sexual desires of the entertainer, employer, or customer.
(j) “Person” means any person, partnership or corporation or joint venture.
(k) “Operator” means any person operating, conducting or maintaining an adult entertainment establishment.
(l) “Morals charge” includes those charges involving prostitution, pimping or promoting prostitution, indecent exposure, illegal use, possession or sale of narcotic or non-narcotic drugs, sodomy, lewd and lascivious behavior, sexual battery, indecent liberties with a child, incest, bigamy and crimes against nature.
(m) “Diversion” or “diversion agreement” means any formal referral of a defendant in a criminal case to a supervised performance program which upon successful completion results in the dismissal of the charges or complaint which is authorized pursuant to the laws of any city, state, or of the United States.
(a) Except as provided in subsection E below, from and after the effective date of this ordinance, no adult entertainment establishment shall be operated or maintained in the city without first obtaining a license to operate issued by the city.
(b) A license may be issued only for one adult entertainment establishment located at a fixed certain place. Any person which desires to operate more than one adult entertainment establishment must have a license for each.
(c) No license or interest in a license may be transferred to any other person.
(d) It is unlawful for any employee or operator to knowingly work in or about, or to knowingly perform any service directly related to the operating of any unlicensed adult entertainment establishments.
(e) All existing adult entertainment establishments at the time of the passage of this ordinance must submit applications for a license within sixty days of the effective date of this ordinance. If an application for such license is not made within a sixty-day period, then such existing adult entertainment establishment shall cease operation. Nothing herein shall be construed to prohibit the city's rights to refuse to grant a license to an existing adult entertainment establishment that upon application is not eligible for a license under this chapter.
(a) Any person desiring to secure a license shall make application in duplicate to the city clerk's office. The application shall be verified and accompanied by the license fee. Both copies of the application shall be filed with the city clerk's office.
(b) The application for a license shall be on a form provided by the city clerk's office. A partnership application, and the application of any officer or director of a corporation and any stockholder holding more than five percent of the stock of a corporate application, shall furnish the following information under oath:
(1) Name and address, including all aliases;
(2) The name of the owner of the premises upon which the adult entertainment establishment is to be located;
(3) The address of the adult entertainment establishment to be operated by the applicant;
(4) A statement by the applicant that he or she is familiar with the provisions of this chapter and is complying with them.
(c) The application for a license shall include the following information as to each employee employed by an adult entertainment establishment which information shall be updated within not less than thirty days of the hiring of a new employee:
(1) The name and address of each such employee;
(2) Written proof that such employee is at least twenty-one years of age;
(3) A listing of all prior convictions of each such employee excepting minor traffic offenses, and the date and location of such convictions;
(4) Two photographs of such employee two inches by two inches in size, taken within thirty days immediately preceding the date of the providing of such information;
(5) A statement by each such employee that he/she is familiar with the provisions of this ordinance and is complying with and will comply with the same.
For any adult entertainment establishment the annual license fee shall be one thousand dollars.
To receive a license to operate an adult entertainment establishment, applicants must meet the following standards:
(a) If the applicant is an individual;
(1) The applicant must be at least twenty-one years of age;
(2) The applicant shall not have been convicted of or pleaded nolo contendere to or participated in a diversion agreement after having been charged with a felony or any morals charge as defined herein in any jurisdiction within the last five years immediately preceding the date of the application.
(b) If the applicant is a partnership, joint venture, corporation or any other type of organization where two or more persons have a financial interest;
(1) All persons having a financial interest in the partnership, joint venture or any other type of organization shall be at least twenty-one years of age. Financial interest in a corporation includes any officer or director of the corporation and any other stockholder holding more than five percent of the stock of a corporation;
(2) No person having a financial interest in the partnership, joint venture, corporation or other type of organization shall have been convicted of or pleaded nolo contendere to or participated in a diversion program after having been charged with a felony or any morals charge within the immediate five years preceding the date of the application.
If an application for a license is in proper form and accompanied by the license fee as provided for herein, the city council shall, after review and recommendation by the city clerk, examine the application. If the applicant is fully qualified pursuant to the guidelines set forth in this chapter, the city council shall issue a license to the applicant within thirty days of the filing of the application. If the city council fails to act on the application within thirty days after it is filed, it shall be deemed granted. If the city council denies the application within thirty days of the filing of the application, the application is deemed finally denied and the same application may not be made within one year unless there are changed circumstances. If the council denies the application, the applicant may appeal the denial pursuant to the provisions of K.S.A. 60-2101(d) and amendments thereto within thirty days of the denial. If an application is denied by the city council over thirty days after it is filed, the denial shall be of no effect except that this provision is not intended to limit the ability of the city council to revoke the license for any of the reasons set forth herein.
The license shall be displayed in a conspicuous public place within premises licensed as an adult entertainment.
Every license issued pursuant to this ordinance shall terminate at the expiration of one year from the date of issuance, unless sooner revoked, and must be renewed before operation is allowed in the following year. Any operator desiring to renew a license shall make application for renewal to the city clerk's office. The application for renewal shall be filed in duplicate and dated by the city clerk. An application for renewal license filed after the expiration date of the license shall not be accepted if the premises the renewal license is being sought for does not comply with the distance requirements set forth herein. A renewal application shall in all other respects be treated as an application for an initial license.
Every operator or employee of an adult entertainment establishment shall comply with the following regulations and the failure to comply with the following regulations shall be unlawful:
(a) No person under the age of twenty-one shall be employed in or around an adult entertainment establishment;
(b) No person under the age of twenty-one shall be permitted to enter or remain in an adult entertainment establishment;
(c) No persons shall be knowingly employed in or around an adult entertainment establishment who within one year prior to employment was released from probation from a conviction for a crime of, or participated in a diversion agreement after being charged with a morals charge or a felony;
(d) Every adult entertainment establishment and every person employed by the establishment in the conduct of his or her business shall admit to any and every part of the premises designated in the license at any time any law enforcement officer or official of the city or its police department authorized by the chief of police for inspection of the premises to assure compliance with the regulations of the city. Except that this provision does not apply to rooms occupied by patrons of an adult hotel during periods of such occupancy.
(e) Every adult entertainment establishment must maintain for inspection a list of all employees providing services directly related to the operation of the establishment including their date of birth, race, sex, and social security number.
No alcohol, liquor or cereal malt beverage shall be sold or consumed on the premises of an adult entertainment establishment except this provision shall not apply to rooms rented and occupied by patron in a adult hotel.
(a) Every adult motion picture arcade shall be physically arranged in such a manner that the interior portion of all viewing areas are visible from a common area of the premises and shall not be obscured by any curtains, drapes, doors or other enclosure except under the following conditions:
(1) The booth is designed for a single occupant;
(2) The booth has a door or curtain which cannot be locked; which may extend downward not closer than fifteen inches from the floor, and which has an open space at the top so that the top of the door or curtain does not extend upward more than six feet from the floor;
(3) Conspicuous signs state, “only one occupant per booth”;
(4) There are no openings between booths; and
(5) It can readily be determined from outside the booth that there is no more than one occupant inside the booth.
(b) No licensee, manager, employee or agent shall permit or allow two or more occupants to occupy any booth which has been designated as a booth designed for a single occupant.
(c) No person shall enter into or remain in a booth which has been designated with a sign stating “only one occupant per booth” while another occupant is in the booth.
The following conduct by any person upon the licensed premises shall be deemed contrary to the public welfare and is prohibited.
(a) Exposing or permitting any person to remain on the premises who exposes to view any portion of the female breasts below the top of the areola or any portion of the male/female pubic hair, anus, buttocks or genitals.
(b) Permitting any person on the premises to touch, caress or fondle the breasts, buttocks, anus, vulva or genitals of any other person.
(c) Encouraging or permitting any person on the premises to touch, caress or fondle the breasts, buttocks, anus, vulva or genitals of any other person.
(d) Performing or permitting any person to perform on the premises acts of or acts which simulate:
(1) Sexual intercourse, masturbation, sodomy or any other sexual act which is prohibited by law;
(2) Touching, caressing or fondling the breasts, buttocks, anus or genitals of the actor or another.
(e) Using or permitting any person on the premises to use on the premises any artificial device or inanimate object to depict any of the acts prohibited by the foregoing subsection.
No license shall be granted for an adult entertainment establishment unless the licensee fully complies with the health regulations, building codes, zoning ordinances, fire prevention and safety regulations of the city.
(a) No license shall be granted for an adult entertainment establishment or adult hotel which is located within one thousand feet of a church, public or parochial school, public park, residential zoning district, or any other adult entertainment establishment or adult hotel.
(b) Provided, however, that adult entertainment establishment or adult hotel licenses may be issued for all establishments engaged in the business of adult entertainment establishments or adult hotels as of the date of this ordinance, that are located within one thousand feet of a church, public park, public or parochial school, residential zoning district, or other adult entertainment establishment or adult hotel, so long as the premises are used or held for use as an adult entertainment establishment or adult hotel. The distance is to be measured from the nearest property line of the residential zoning district, church, public or parochial school, public park or other adult entertainment establishment or adult hotel to the nearest property line of the premises on which the adult entertainment establishment or adult hotel is located or of any parking lot designated to be used by the patrons of such an establishment. Provided, however, that:
(1) Such license, once issued, shall not be renewed to any person or premises not identified in the original license; further, that should such licensed establishment cease to be used for such purpose for a period of ninety days or more, then and in that event, no new adult entertainment establishment or adult hotel license shall be issued for the establishment except as specifically provided by this ordinance.
(2) Should a licensed establishment cease to be used for such purpose for a period of ninety days or more, then and in that event the existing license shall be deemed to expire at twelve a.m., noon, on the 91st calendar day of non-use. In no event shall this provision be construed to extend the term of a license issued under this section. Should a license expire pursuant to this provision, the licensee may make application to the license collector for a refund of the portion of license fee attributed to the remaining period of the license. All such applications must be filed at least sixty days prior to the end of the original term of the license. No refunds shall be made for a period of time less than sixty days.
(c) Periods of time during which such establishments are being remodeled or repaired because of normal wear and tear, desire to improve the quality of the premises, or damage caused by fire or natural disaster such as floods or windstorms, shall not be included in computing the above ninety-day period, provided, that any remodeling or repair must be commenced within ninety days after closure of any structure and completed within a reasonable time thereafter. The chief of police of the Andover Police Department shall be notified in writing within thirty days of closing of such establishment for remodeling or repair, such notice to state the date of commencement and estimated or actual completion of remodeling or repair. Any establishment shall not be relicensed and shall cease to be used as an adult entertainment establishment or adult hotel if repair is not commenced within a reasonable time thereafter and/or if the chief of police is not notified within the thirty-day time period.
(a) The chief of police after actual service of ten days written notice to the person holding a license for an adult entertainment establishment or adult hotel pursuant to this title, shall have the authority to suspend such license for a period not to exceed thirty days, for any violation of the provisions of this ordinance or other ordinances or statutes regulating conduct in adult entertainment establishments, or adult hotels; provided, however that the licensee may appeal such order of suspension to the city council within seven days from the date of such order.
(b) The city council after actual service of ten days written notice to the person holding a license for an adult entertainment establishment, pursuant to this title, may cause to be suspended for a period of not more than thirty days or may permanently revoke such license for the following reasons:
(1) If the licensee has fraudulently obtained the license by giving false information in the application therefor;
(2) If the licensee, manager, operator, or employee has violated any of the provisions of this ordinance;
(3) If the licensee has become ineligible to obtain a license under this ordinance;
(4) The nonpayment of any license fees payable hereunder;
(5) For knowingly employing a person who has been, within one year prior to the date of employment, or who during the period of employment is adjudged guilty of or participated in a diversion agreement after being charged with a felony or a morals charge, or within one year prior to employment has been released from probation from a felony or a morals charge.
(c) Provided, that if any of the grounds for revocation herein enumerated are violated by an employee, a manager, or agent, then in absence of proof of knowledge by the licensee, there shall be no revocation, except as herein provided, but there may be a suspension of not more than thirty days; it being further provided that in the event any licensee is subjected to more than two such suspensions in any twelve-month period, his or her license may be revoked on the third such violation.
(d) Upon appeal taken from an order or suspension or revocation the court may stay the order of suspension or revocation upon a showing by the appellant and a finding by the court that a substantial likelihood exists that the movant will eventually prevail on the merits and that the movant will suffer irreparable injury unless the stay is granted. If there is no stay by the court then the order of suspension or revocation shall not be suspended during the pendency of any such appeal. In case of the revocation of a license of any licensee, no new license shall be issued to such person or to any person acting for or on his or her behalf, for a period of six months after the revocation becomes effective.
Any person who violates any provision of this ordinance is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed one thousand dollars or by imprisonment for not more than ninety days, or by both such fine and imprisonment.
The city attorney may bring an action in the District Court or any other appropriate court having jurisdiction to enjoin the violation of said section of this code.
Should any court declare any section, clause or provision of this ordinance to be unconstitutional, such decision shall affect only such section, clause or provision so declared unconstitutional and shall not affect any other section, clause or provision of this ordinance.