For the purpose of this ordinance, and unless the context otherwise requires, the following words, terms and phrases shall be defined as follows:

(a)   ‘Adult arcade’ means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically or mechanically controlled still or motion picture machines, projectors or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of ‘specified sexual activities’ or ‘specified anatomical areas.’

(b)   ‘Adult bookstore,’ ‘adult novelty store’ or ‘adult video store’ means a commercial establishment which has as a significant or substantial portion of its stock-in-trade or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or maintains a substantial section of its sales or display space for the sale or rental, for any form of consideration, of anyone or more of the following:

(1)   Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, slides or other visual representations which are characterized by their emphasis upon the exhibition or display of ‘specified sexual activities’ or ‘specified anatomical areas’;

(2)   Instruments, devices or paraphernalia which are marketed or designed for use in connection with ‘specified sexual activities’ or for stimulation of human genital organs or for sadomasochistic use or abuse of a person or persons, but excluding condoms and other birth control and disease prevention products; it being presumptive evidence that such activities comprise a significant or substantial portion of its interior business such business regularly excludes all minors from its premises or a section thereof because of the sexually explicit nature of the items sold, rented or displayed therein.

(c)   ‘Adult cabaret’ means a nightclub, bat, restaurant or similar commercial establishment which regularly features:

(1)   Persons who appear in a state of nudity; or

(2)   Live performances which are characterized by the exposure of ‘specified anatomical areas’ or by ‘specified sexual activities’; or

(3)   Films, motion pictures, video cassettes, compact discs, slides or other photographic reproductions which are characterized by the depiction or description of ‘specified sexual activities’ or ‘specified anatomical areas.’

(d)   ‘Adult motel’ means a hotel, motel or similar commercial establishment which either:

(1)   Offers accommodations to the public for any form of consideration; provides patrons with closed circuit television transmissions, films, motion pictures, video cassettes, compact discs, slides or other photographic reproductions which are characterized by the exhibition or display of ‘specified sexual activities’ or ‘specified anatomical areas’; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or

(2)   Offers a sleeping room for rent for a period of time that is less than 10 hours; or

(3)   Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours.

(e)   ‘Adult motion picture theater’ means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, compact discs, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of ‘specified sexual activities’ or ‘specified anatomical areas.’

(f)   ‘Adult theater’ means a theater, concert hall, auditorium or similar commercial establishment which regularly features persons who appear in a state of nudity, or live performances which are characterized by the exposure of ‘specified anatomical areas’ or by ‘specified sexual activities.’

(g)   ‘Employee’ means an individual working or performing services for any sexually oriented business, including any independent contractor who provides services on behalf of any sexually oriented business to the patrons of such business.

(h)   ‘Establish’ means and includes any of the following:

(1)   The opening or commencement of any sexually oriented business as a new business;

(2)   The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;

(3)   The addition of any sexually oriented business to any other existing sexually oriented business; or

(4)   The relocation of any sexually oriented business.

(i)    ‘Licensee’ means a person in whose name a license to operate a sexually oriented business has been issued, as well as any person or individual associated with a sexually oriented business as described in 12-1203(f).

(j)    ‘Nonporous’ excludes any wood, plywood, composition board or other porous material.

(k)   ‘Nudity’ or a ‘state of nudity’ means the appearance of the human male or female genitals, pubic area, vulva, anus or anal cleft with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any part of the female breast below a horizontal line across the top of the areola at its highest point, or the showing of the covered male genitals in a discernibly turgid state.

(l)    ‘Operate’ or ‘cause to be operated’ means to cause to function or to put or keep in a state of doing business. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner or licensee of the business.

(m)  ‘Operator’ means any person who is authorized to or who does exercise operational control of a sexually oriented business, or who causes to function or who puts or keeps in operation the business. A person may be found to be an operator of a sexually oriented business whether or not that person is an owner, part owner or licensee of the business. Any person while serving the function of the on-site manager of such a business shall be regarded as an operator.

(n)   ‘Person’ means an individual, proprietorship, general or limited partnership, corporation, limited liability company or partnership, association or other legal entity, unless the context clearly indicates that the reference is to an individual.

(o)   ‘Sexually oriented business’ means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater or any combination of such businesses.

(p)   ‘Specified anatomical areas’ means:

(1)   The human male genitals in a discernibly turgid state, even if completely and opaquely covered;

(2)   The appearance of the anus, the cleft of the buttocks, the male or female genitals, or the female breast below a horizontal line across the top of the areola at its highest point; or

(3)   A state of dress which fails to opaquely cover the anus, the cleft of the buttocks, the male or female genitals, or a female breast below a horizontal line across the top of the areola at its highest point.

(q)   ‘Specified sexual activities’ means and includes any of the following:

(1)   The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;

(2)   Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation or sodomy;

(3)   Excretory functions as part of or in connection with any activities set forth in (1) through (2) above.

(r)    ‘Transfer of ownership or control’ of a sexually oriented business means and includes any of the following:

(1)   The sale, lease or sublease of the business;

(2)   The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; or

(3)   The establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

(s)   ‘Viewing room’ means the room, booth or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, video cassette, compact disc, slide or other or other video reproduction.

(Ord. 4441-03)

Sexually oriented businesses shall be classified as follows:

(a)   Adult arcades;

(b)   Adult bookstores, adult novelty stores, or adult video stores;

(c)   Adult cabarets;

(d)   Adult motels;

(e)   Adult motion picture theaters; and

(f)   Adult theaters.

(Ord. 4441-03)

(a)   It shall be unlawful for any person to establish, to operate, to be an operator of, or to cause to be operated any sexually oriented business in the City of Newton, Kansas, without a valid license issued by the City for the particular type of business, or to employ a person who is not licensed as a sexually oriented business employee as provided by subsection (b) of this section or who is not authorized to work or perform services pursuant to subsection (c) of this section.

(b)   Except as provided in subsection (c) of this section, it shall be unlawful for any person to be an employee of a sexually oriented business without a valid license; provided, however, that the provisions of this subsection shall not apply to an employee of an adult bookstore, adult novelty store or adult video store unless such bookstore; and provided, further, no person in whose name a license is issued to operate a sexually oriented business shall also be required to have a sexually oriented business employee license.

(c)   Upon receipt by the City Clerk of a complete application for a sexually oriented business employee license, the City Clerk shall issue the applicant a temporary work permit and the applicant may work or perform services without an employee license until such time as the license is granted or the decision to deny the license becomes final pursuant to Section 12-1210. The applicant shall keep the temporary work permit on his or her person or on the premises where the applicant is then working or performing services, and shall produce such permit for inspection upon request by a law enforcement officer or other authorized city official.

(d)   An application for a sexually oriented business license or a sexually oriented business employee license must be filed at the office of the City Clerk on an application form prescribed and provided by the City Clerk, and must include one or more addresses at which the applicant agrees to accept any notices hereunder. If the applicant resides or maintains a residential or business address in the city, then at least one of the addresses provided for notice must be a local address. An application shall not be considered complete until it includes all of the information and satisfies all of the requirements of this Section and until the license fee is paid in full.

(e)   A sexually oriented business employee license may be issued only to an individual who is not less than 18 years of age and who has submitted a complete application which provides all of the information set forth in subsection (g) below and which meets all of the requirements and qualifications herein.

(f)   A sexually oriented business license may be issued to any of the following:

(1)   To an individual, if:

(A)  Such person is the sole owner of the business;

(B)  Such person is not less than 18 years of age;

(C)  Such person and such person’s spouse has submitted a complete application which provides all of the information as to each such person as set forth in subsection (g) below; and

(D)  Such person and such person’s spouse meet all of the requirements and qualifications herein;

(2)   To two or more individuals jointly or as members of a general partnership if:

(A)  All of the persons joining in the application constitute all of the owners of the business;

(B)  Each such person is not less than 18 years of age;

(C)  Each such person and each such person’s spouse has submitted a complete application which provides all of the information as to each such person as set forth in subsection (g) below; and

(D)  Each such person and each such person’s spouse meets all of the requirements and qualifications herein;

(3)   To a corporation, limited partnership, limited liability company or other legal entity if:

(A)  Each person who is a stockholder or holder, directly or indirectly, of any other ownership or equitable interest in the entity constituting not less than a twenty-five percent (25%) ownership or equitable interest is not less than 18 years of age, these provision applying also to each person who owns or holds in joint ownership a twenty-five percent (25%) or more ownership or equitable interest;

(B)  The complete application includes all of the information as to each such person and each such person’s spouse as set forth in subsection (g) below; and

(C)  Each such person and each such person’s spouse meets all of the requirements and qualifications herein.

(g)   The application shall include all of the following as to each individual described in subsection (f) above:

(1)   The full true name of the individual and the individual’s spouses, and any other names used by any such person and such person’s spouse in the preceding five years, and the current residential mailing address and phone number of each.

(2)   The Social Security number of the individual and the individual’s spouse.

(3)   Documentary proof of the individual’s identity and age, with must include a current driver’s license with the person’s picture or other picture identification document issued by a governmental agency, and which may include a copy of a birth certificate. The City Clerk shall be entitled to make and retain a copy of such documentary proof.

(4)   A photograph of the individual and a set of the individual’s complete fingerprints suitable for conducting necessary background checks pursuant to this ordinance. At the City Clerk’s option, the City Clerk may provide for the taking of the photograph and/or the fingerprints at the office of the City Clerk or at any other city location; provided, however, that at the City Clerk’s option a photograph and fingerprints taken within the preceding one month by a law enforcement agency and accompanied by a notarized verification by that agency may be accepted.

(5)   Sufficient identifying information regarding any prior application by the individual in any jurisdiction, or any prior or existing license or permit of the individual from any jurisdiction, relating to the conduct of any business which would constitute a sexually oriented business as defined herein, and whether any such application, license or permit has been denied, revoked or suspended. If any such application, license or permit has been denied, revoked or suspended, the reason or reasons therefor shall be provided.

(6)   All pending criminal charges, complaints, informations or indictments against the individual in any jurisdiction for any offense described in Section 12-1204(a)(6), and all convictions within the preceding five years in any jurisdiction for any offense described in Section 12-1204(a)(6). Any offense committed or alleged to have been committed outside of the State of Kansas shall be reportable hereunder if the elements of such an offense would constitute an offense described in Section 12-1204(a)(6) if committed in the State of Kansas.

(7)   If the application is for a sexually oriented business license, the operating name, business location, business mailing address and phone number of the proposed sexually oriented business, and the classification of sexually oriented business for which the license is sought.

(8)   Each such individual shall provide a signed and notarized verification that all of the information provided above is true, correct and complete.

(9)   Each such individual shall provide a written release or releases in such form as will permit the City Clerk to conduct the necessary criminal and civil background checks to confirm the information provided in the application.

(h)   If the license is to be issued to a corporation, limited partnership, limited liability company or other legal entity, the application shall include all of the following as to the entity:

(1)   The entity’s full legal name, and any prior legal name and any other name in which it has done business in the preceding five years.

(2)   The entity’s taxpayer identification number as issued by the Internal Revenue Service, current mailing address and telephone number for the entity’s principal place of business, and local mailing address and telephone number.

(3)   Each State under whose laws the entity’s organizational documents are recorded or in which it has authorization to do business.

(4)   The name of each person who is a stockholder or holder, directly or indirectly, of any other ownership or equitable interest in the entity constituting not less than a twenty-five percent (25%) ownership or equitable interest, including the name of each person who owns or holds in joint ownership a twenty-five percent (25%) or more ownership or equitable interest.

(5)   Sufficient identifying information regarding any prior application by the entity or by any parent company or subsidiary in any jurisdiction, or any prior or existing license or permit of the entity, its parent or subsidiary from any jurisdiction, relating to the conduct of any business which would constitute a sexually oriented business as defined herein, and whether any such application, license or permit has been denied, revoked or suspended. If any such application, license or permit has been denied, revoked or suspended, the reason or reasons therefor shall be provided.

(6)   All pending criminal charges, complaints, informations, or indictments against the entity or against any parent company or subsidiary in any jurisdiction for any offense described in Section 12-1204(a)(7), and all convictions within the preceding five years in any jurisdiction for any offense described in Section 12-1204(a)(7). Any offense committed or alleged to have been committed outside of the State of Kansas shall be reportable hereunder if the elements of such an offense would constitute an offense described in Section 12-1204(a)(7) if committed in the State of Kansas.

(7)   The business operating name, business location, mailing address and phone number of the proposed sexually oriented business, and the classification of sexually oriented business for which the license is sought.

(8)   The application must be signed by a duly authorized officer or official of the entity, whose signature must be notarized and must contain a verification that all of the information provided above is true, correct and complete.

(i)    The information provided pursuant to subsections (g) and (h) above shall be supplemented by written notice conveyed by certified mail, return receipt requested, to the City Clerk within 10 working days of any changes which would render the information originally submitted to be no longer current or complete, including any changes as to or in the individuals who are described in subsection (f) above. If such change includes there being a new or different individual involved in the entity meeting the description in subsection (f) above, then all of the information and requirements as to such individual as in an original application must be provided and satisfied within 10 working days after the conveyance of such written notice.

(j)    The application for a sexually oriented business license shall be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches. Applicants who are required to comply with Section 12-1213 shall submit a diagram meeting the requirements of Section 12-1213.

(k)   A person who possesses a valid business license of any other type than that provided under this ordinance is not exempt from the requirement of obtaining a sexually oriented business license or from complying with the requirements and provisions of this article.

(l)    The information provided by an applicant in connection with the application for a license under this ordinance shall be maintained by the City Clerk on a confidential basis, except that such information may be disclosed to other governmental agencies in connection with law enforcement, public safety or other administrative investigative or adjudicative functions, or as may otherwise be required or provided by law.

(Ord. 4441-03)

(a)   The City Clerk shall approve or deny the issuance of a license to an applicant for a sexually oriented business license or a sexually oriented business employee license within 30 days after receipt of an application. The City Clerk shall approve the issuance of a license unless one or more of the following is found to be true:

(1)   Any individual as described in Section 12-1203(f) above is under 18 years of age.

(2)   The applicant or any individual as described in Section 12-1203(f) above is delinquent in the payment to the City of taxes, fees, fines or penalties assessed against or imposed upon the applicant or any such individual in relation to a sexually oriented business or arising out of any other business activity owned or operated by the applicant or individual in the City.

(3)   The application is not complete, or is found to contain false or incomplete information.

(4)   The applicant or any individual as described in Section 12-1203(f) above has been convicted of a violation of a provision of this ordinance, other than the offense of operating a sexually oriented business without a license, within two years immediately preceding the application. The fact that a conviction is being appealed shall have no effect unless and until such conviction is overturned.

(5)   The applicant or any individual as described in Section 12-1203(f) above or the proposed establishment is in violation of or is not in compliance with any of the provisions of Sections 12-1206, 12-1211, 12-1212, 12-1213, 12-1214 or 12-1215.

(6)   The applicant or any individual as described in Section 12-1203(f) above:

(A)  Has within the prior five (5) years been convicted of or entered into any diversion agreement in relation to any of the following offenses if committed in this State, including any municipal offense or infraction which is the equivalent thereof, or has been convicted of or entered into any diversion agreement in relation to any offense committed outside this State which if committed in this State would constitute one of the following offenses:

(i)    Any felony;

(ii)   Any sex offense as set forth in Article 35 of Chapter 21 of the Kansas statutes;

(iii)  Any of the following offenses set forth in Article 36 of Chapter 21 of the Kansas statutes: incest under K.S.A. 21-3602; aggravated incest under K.S.A. 21-3603; or furnishing alcoholic beverage to a minor for illicit purposes under K.S.A. 21-3610b;

(iv)  Attempt, solicitation, conspiracy, or facilitation to commit any of the foregoing offenses;

       The fact that a conviction is being appealed having no effect on the disqualification of the applicant unless and until such conviction is overturned.

(B)  Has within the individual’s lifetime been convicted of and/or entered into any diversion agreement in relation to two or more of any of the offenses set forth in subsection (6)(A) above.

(7)   The location of the sexually oriented business does not meet the requirements and conditions set forth in Section 12-1212.

(b)   A license for a sexually oriented business shall authorize the operation of only one classification of sexually oriented business under Section 12-1203. No more than one sexually oriented business license may be issued or held for anyone location.

(c)   The license, if granted, shall state on its face the name of the person or persons or entity to whom it is granted and the expiration date. If the license is for a sexually oriented business, the license shall state the name and address of the sexually oriented business and the classification of sexually oriented business for which the license is issued. The sexually oriented business license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time. A sexually oriented business employee shall keep the employee’s license on his or her person or on the premises where the licensee is so employed, and shall produce such license for inspection upon request by a law enforcement officer or other authorized city official.

(Ord. 4441-03)

(a)   The annual nonrefundable application fee for a sexually oriented business license or for the renewal thereof is $2,000.00.

(b)   The annual nonrefundable application fee for a sexually oriented business employee license or for the renewal thereof is $250.00.

(Ord. 4441-03)

(a)   An applicant, operator or licensee shall permit any law enforcement officer and any other authorized city official to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with this ordinance at any time it is occupied or open for business, or at such other times if such officer or official is in possession of a valid search warrant, or at any other time upon not less than 48 hours advance notice. It shall be unlawful for a licensee, operator or employee of a sexually oriented business to refuse to permit such access or such inspection.

(b)   The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation in the absence of a valid search warrant therefor.

(Ord. 4441-03)

Each license shall expire on December 31 of the calendar year in which it is issued. The license may be renewed only by making application as provided in Section 12-1203. Application for renewal which is made less than 30 days before the expiration date shall not affect the expiration of the license if a renewal license is not issued prior to such expiration date.

(Ord. 4441-03)

The City Clerk shall issue to the licensee a written notice of intent to suspend a sexually oriented business license or a sexually oriented business employee license for a period not to exceed 30 days if the City Clerk determines that grounds for suspension exist. The notice shall specify the grounds for suspension. Any of the following shall constitute grounds for the suspension of a license for a period not to exceed 30 days:

(a)   The licensee has violated or is not in compliance with any Section of this article; or

(b)   The licensee has refused to allow an inspection of the sexually oriented business premises.

(Ord. 4441-03)

The City Clerk shall issue a written notice of intent to revoke a sexually oriented business license or a sexually oriented business employee license if the City Clerk determines that grounds for revocation exist. The notice shall specify the grounds for revocation. Any of the following shall constitute grounds for revocation:

(a)   A cause of suspension has occurred within less than one year from a time when the license was previously under suspension.

(b)   Any required information contained in or with the license application is materially false, incomplete or misleading.

(c)   A licensee or a licensee’s operator has knowingly allowed possession, use or sale of controlled substances on the premises.

(d)   A licensee or a licensee’s operator has knowingly allowed commission of any offense on the premises listed in Section 12-1204(a)(6)(A).

(e)   A licensee or a licensee’s operator has knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended.

(f)   A licensee or any individual affiliated with a licensee as described in Section 12-1203(f)(3) has been convicted of an offense listed in Section 12-1204(a)(6)(A) and such conviction has become final, or a licensee has entered into a diversion agreement as to any such offense.

(g)   On two or more occasions within a 12-month period a person or persons while in or on the licensed premises committed an offense listed in Section 12-1204(a)(6)(A) for which a conviction has been obtained and has become final or for which the person has entered into a diversion agreement, and the person or persons were employees of the sexually oriented business at the time the offenses were committed.

(h)   A licensee or a licensee’s operator has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sex act to occur in or on the licensed premises. This provision shall not apply to an adult motel unless the licensee knowingly allowed sexual activities to occur which either constitute a sex offense under Article 35 of Chapter 21 of the Kansas Statutes, or knowingly allowed sexual activities to occur in a public place or within public view.

When the City Clerk revokes a license, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation becomes effective. If, subsequent to revocation, the City Clerk finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under subsection (f) of this section, an applicant may not be granted another license until the appropriate number of years required under Section 12-1204(a)(6) has elapsed.

(Ord. 4441-03)

(a)   If the City Clerk determines that grounds exist for denial, suspension, or revocation of a license under this article, the City Clerk shall notify the applicant or licensee (respondent) in writing of the intent to deny, suspend or revoke the license, including a summary of the grounds therefor. The notification shall be personally delivered to the respondent or sent to the respondent by certified mail to the address on file with the City Clerk. Within 10 working days of receipt of such notice, the applicant or licensee may file with the City Clerk a written request for a hearing, which request shall include a statement of reasons why the license or permit should not be denied, suspended, or revoked, and which may include any documentary evidence which the respondent wishes to have considered.

(b)   If a request for a hearing is not received by the City Clerk in the time stated, the denial, suspension or revocation shall then be final and notice thereof such shall be personally delivered or sent to the applicant or licensee by certified mail. In such event, there shall be no right of appeal as to the merits of such a determination.

(c)   If a request for a hearing is received by the City Clerk, the City Clerk shall report the same to the City Manager who shall arrange for the appointment of a License Appeal Board, and the City Clerk shall convey to the respondent in writing by certified mail a notice of hearing before the License Appeal Board specifying the date, time and place of the hearing. The hearing shall be conducted within ten business days of the receipt of the request for hearing, unless the applicant or licensee consents to a later hearing date.

(d)   The License Appeal Board shall consist of three persons, two of whom shall be members of the City’s administrative staff (other than the City Clerk, City Attorney or Chief of Police) as designated by the City Manager, which may include the City Manager, and one of whom shall be the Mayor or a City Commissioner designated by the Mayor. The members of the License Appeal Board shall designate one of the members to preside as the Chair. The respondent may be represented by counsel. The hearing shall be conducted in an informal manner and formal rules of evidence shall not apply. The License Appeal Board shall render a written decision within five business days after the conclusion of the hearing, which shall be personally delivered or mailed to the respondent by certified mail to the address of the respondent on file with the City Clerk. An applicant or licensee may continue to work or perform services under his or her temporary work permit or license until such time as the decision of the License Appeal Board becomes final.

(e)   The decision of the License Appeal Board shall constitute final administrative action. Any decision of the License Appeal Board overruling the denial, suspension or revocation of a license or permit shall become effective immediately upon its issuance. Any decision of the License Appeal Board upholding the denial, suspension or revocation of a license or permit shall be effective at the end of fifteen (15) business days after the date of its issuance. The effectiveness of such a decision shall not be affected by any failure or refusal of a respondent to accept deli very of a notice of such decision, or by any postal return of such notice if properly posted and directed to an address provided by the applicant or licensee for the purposes of notice hereunder.

(f)   Any applicant or licensee aggrieved by a decision of the License Appeal Board to deny, suspend or revoke a license or permit shall have the right to seek judicial review of the decision in either of the following manners:

(1)   An appeal of the decision of the License Appeal Board may be taken by filing a notice of appeal with the clerk of the municipal court of the city. Such notice of appeal must be filed prior to the effective date of the decision under the terms of subsection (e) above. The court shall conduct a hearing on such appeal within twenty (20) days of the filing of the notice of appeal and shall render a decision within ten (10) days of the conclusion of the hearing. The hearing shall not be continued beyond the twentieth (20th) day following the filing of the notice of appeal without the consent of the appellant, unless the court finds that the interests of justice and equity compel such a continuance be reason of any inappropriate conduct of the appellant in the prosecution of the appeal.

(2)   An appeal of either the decision of the License Appeal Board or of the municipal court may be taken by commencing an appropriate civil proceeding in the District Court of Harvey County, Kansas, within thirty (30) days of the issuance of either such decision. In the event of such an appeal, the city through its counsel and representatives shall take every reasonable action to assist the appellant in procuring a prompt judicial review of the decision on appeal, including giving the city’s consent to an expedited schedule of the proceedings therein. Failure of the city to cooperate in the procuring of such a prompt judicial review shall constitute grounds for the reversal by the District Court of the decision on appeal.

(g)   The pendency of any such appeal by an applicant or licensee shall serve to stay the expiration of any temporary permit or license, and shall serve to stay the enforcement of any suspension or revocation of a permit or license; provided, however, that the foregoing shall not in any other manner affect the applicability or enforcement of all other requirements and restrictions of this ordinance.

(Ord. 4441-03)

No license issued under this ordinance shall be transferable to another person or property. No license issued under this ordinance shall serve to permit the conduct of any licensed business activities at any business location other than the location designated in the application. No license issued under this ordinance shall serve to permit the conduct of any sexually oriented business activities other than those within the classification for which application was made and for which the license was issued. Any change in the classification of sexually oriented business to be conducted at a location shall first require that a new license application for such other classification by submitted and approved, with the prior license then being revoked upon the granting of such approval. Such revocation shall not require the following of the procedures under Sections 12-1209 or 12-1210.

(Ord. 4441-03)

(a)   No sexually oriented business shall be established at any location which does not comply with the following:

(1)   Sexually oriented businesses may be located only in a C-2 (General Business District) zoning classification under the Zoning Ordinances of the City, and only in such locations within such a zoning classification which complies with the following requirements and restrictions.

(2)   No sexually oriented business may be located within 500 feet of any of the following:

(A)  A licensed preschool or day care center;

(B)  A public or private educational facility (although not including any building owned or occupied by an educational institution which is not used principally for student instruction or activities);

(C)  A public park or playground, including but not limited to nature, hiking or biking trails, swimming pools, athletic fields or athletic playing surfaces, picnic areas and wilderness areas;

(D)  A church, synagogue, mosque, temple or other building which is used primarily for religious worship and related religious activities;

(E)   An outdoor commercial recreational facility, including but not limited to miniature golf facilities, driving ranges, batting cages, go-cart tracks, and carnival rides and facilities;

(F)   An establishment licensed for the sale of alcoholic liquor and/or cereal malt beverages for consumption on the premises;

(G)  Any portion of a roadway right-of-way being used as an exit ramp or exit roadway from any interstate or U.S. highway;

(H)  Any portion of a roadway right-of-way being used as an intersection of a city street with any interstate or U.S. highway; or

(I)    Any other sexually oriented business as to which a license is required under this ordinance.

(3)   No sexually oriented business or any of its exterior portions such as parking lots, entrances and exits may be located on any lot or property which is adjacent to the front yard or side yard portion of any lot or property which is zoned for residential purposes. For purposes of this subsection, properties separated by a public street shall be regarded as being adjacent, and a lot or property shall be regarded as being zoned for residential purposes if it is within any of the following zoning classifications: R-S (Single-family Suburban District); R-1 (Single-family Dwelling District); R-2 (Two-family Dwelling District); R-3 (Multifamily Dwelling District); R-3 RMFD (Flexible Multi-family Dwelling District); M-H (Mobile Home Subdivision District); M-P (Mobile Home Park District); or any PUD (Planned Unit Development District) which is designed for the principal use of residential living units.

(4)   For purposes of applying the separation district restrictions under subsection (2) above, the distance shall be measured from the closest exterior portion of the building structure in which the sexually oriented business is or is to be located to the closest portion of the exterior of the use designated in subsection (2), including parking lots and exterior grounds associated with such other use. As to any sexually oriented business located in a building which houses other separately owned or leased businesses, the measuring point shall be from the portion of the premises provided for the use of such sexually oriented business (excluding parking facilities which are for the common use of patrons of all such businesses) which is closest to the other use designated in subsection (2).

(b)   No sexually oriented business, except for an adult motel, shall be open for business or have patrons present In the premises between the hours of one o’clock A.M. (1:00 A.M.) and eight o’clock A.M. (8:00 A.M.) of any day of the week, or between the hours of eight o’clock A.M. (8:00 A.M) and noon (12:00 P.M.) on Sunday.

(c)   No person under the age of 18 years shall be permitted in the premises of a sexually oriented business.

(d)   No employee of a licensee shall be permitted to be in the premises of a sexually oriented business who does not have a valid temporary work permit or a sexually oriented business employee license. No employee of a licensee shall be permitted to engage in any activities in the premises of a sexually oriented business which is in violation of the provisions of this article.

(Ord. 4441-03)

(a)   A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the premises in a viewing room of less than 150 square feet of floor space, a film, video cassette, or other video reproduction which depicts specified sexual activities or specified anatomical areas shall comply with the following requirements:

(1)   Each application for a sexually oriented business license shall contain a diagram of the premises showing the location of all manager’s stations, viewing rooms, overhead lighting fixtures, video cameras and monitors installed for monitoring purposes, and restrooms, and shall designate all portions of the premises in which patrons will not be permitted. Restrooms shall not contain video reproduction or viewing equipment. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer’s or architect’s blueprint shall not be required; however, each diagram shall be oriented to the north or to some designated street or object and shall be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior of the premises to an accuracy of plus or minus six inches. The City Clerk may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.

(2)   The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager’s station of every area of the premises, including the interior of each viewing room to which any patron is permitted access for any purpose. A manager’s station shall not exceed 32 square feet of floor area. If the premises has two or more manager’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager’s stations. The view required in this paragraph must be by direct line of sight from the manager’s station. It is the duty of the operator to ensure that at least one employee is on duty and situated in each manager’s station at all times that any patron is on the premises. It shall be the duty of the operator, and it shall also be the duty of any employees present on the premises to ensure that the view area specified in this paragraph remains unobstructed by any doors, curtains, walls, merchandise, display racks or other materials or enclosures at all times that any patron is present on the premises.

(3)   The interior premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than one footcandle as measured at the floor level. It shall be the duty of the operator, and of any employees present on the premises, to ensure that the illumination described above is maintained at all times that the premises is occupied or open for business.

(4)   The interior of the licensed business must be maintained at all times in conformity with the approved diagram, and no alteration in the configuration may be made without the prior approval of the City Clerk.

(b)   It shall be the duty of the license and operator, and of any employee present on the premises, to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application and diagram filed pursuant to subsection (a) above.

(c)   It shall be the duty of the licensee and operator, and of any employee present on the premises, to ensure that no act of sexual intercourse, sodomy, oral copulation, masturbation, or other sex act or sexual contact occurs in or on the licensed premises.

(d)   It shall be the duty of the licensee and operator, and of any employee present on the premises, to ensure that not more than one person is present in a viewing room at any time. It shall be unlawful for any person patronizing such a business to enter a viewing room that is occupied by another person.

(e)   It shall be the duty of the licensee and operator, and of any employee present on the premises, to ensure that no openings of any kind exist between viewing rooms. It shall be unlawful for any person patronizing such a business to make or attempt to make an opening of any kind between viewing rooms.

(f)   It shall be the duty of the licensee and operator, and of any employee present on the premises, who discovers two or more patrons in a viewing room or discovers any person making or attempting to make an opening of any kind between viewing rooms, to immediately remove or cause the removal of such person or persons from the premises.

(g)   It shall be the duty of the licensee and operator, and of any employee present on the premises, who discovers an opening of any kind between viewing rooms to immediately secure such rooms, and to prevent entry into them by any patron until such time as the wall between the rooms has been repaired to remove the opening. Removal and repair of openings between viewing rooms shall be in a manner that is as structurally substantial as the original wall construction.

(h)   It shall be the duty of the licensee and operator, during each business day, to regularly inspect the walls between viewing rooms for openings of any kind.

(i)    It shall be the duty of the licensee and operator, and of any employee present on the premises, to initiate and enforce a no loitering policy in viewing rooms.

(j)    It shall be the duty of the licensee and operator to post conspicuous signs in well lighted entry areas of the business stating all of the following:

(1)   That no loitering is permitted in viewing rooms.

(2)   That the occupancy of viewing rooms is limited to one person, and that violation thereof is punishable by law.

(3)   That sexual intercourse, sodomy, oral copulation, masturbation, or other sex act or sexual contact on the premises is prohibited, and that violation thereof is punishable by law.

(4)   That the making of openings between viewing rooms is prohibited, and that violation thereof is punishable by law.

(5)   That violators will be required to leave the premises.

(k)   It shall be the duty of the licensee and operator to ensure that floor coverings in viewing rooms are nonporous, easily cleanable surfaces, with no rugs or carpeting.

(l)    It shall be the duty of the licensee and operator to ensure that all wall surfaces and seating surfaces in viewing rooms or any room or area providing patron privacy are constructed of and are permanently covered by nonporous, easily cleanable material.

(m)  It shall be the duty of the licensee and operator to ensure that the premises are clean and sanitary at all times. Cleaning procedures shall include all of the following:

(1)   The licensee and operator shall maintain a regular cleaning schedule, documented by appropriate logs, and shall employ sufficient personnel to assure the establishment is clean.

(2)   The licensee and operator shall provide an employee to check all areas for garbage, trash, body fluids and excrement and to remove and clean all areas with a disinfectant. All solid waste generated by the business shall be collected from the premises for disposal at a lawful sol id waste disposal facility at least twice each week. Prior to collection solid waste shall be stored in a manner that prevents access by animals or members of the public and which will not facilitate the creation of a health nuisance.

(3)   Thorough cleaning of the entire interior of any room providing patron privacy shall be done using a disinfectant. Cleaning shall include floors, walls, doors, seating, monitors, video cameras, and windows and other surfaces.

(n)   It shall be the duty of the licensee and operator to ensure any seating within a viewing room is designed so as to accommodate one person only.

(o)   It shall be unlawful for a person having a duty under this section to knowingly fail to fulfill that duty.

(Ord. 4441-03)

(a)   A sexually oriented business which features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities shall be operated in accordance with the following regulations. It is unlawful for a licensee or operator to knowingly fail to ensure compliance with the regulations:

(1)   A person shall not appear in a state of nudity or engage in a live performance which is characterized by the exposure of specified anatomical areas or by specified sexual activities except upon a stage elevated at least 18 inches above floor level. All parts of the stage, or a clearly designated area thereof within which the person appears in a state of nudity or performs, shall be a distance of at least three feet from all parts of a clearly designated area in which patrons may be present. The stage or designated area thereof shall be separated from the area in which patrons may be located by a barrier or railing the top of which is at least three feet above floor level. No person appearing in a state of nudity or engaging in such live performances or patron may extend any part of his or her body over or beyond the barrier or railing.

(2)   An employee may not touch the breast, buttocks or genitals of a patron, nor may a patron touch the breast, buttocks or genitals of an employee.

(3)   A patron may not place any money on the person or in or on the costume of an employee.

(4)   A person below the age of 18 years may not observe or appear in a state of nudity or in such live performances on the premises of a sexually oriented business.

(5)   It shall be the duty of the licensee and operator to immediately remove or cause the removal of any patron who violates the foregoing rules of conduct

(Ord. 4441-03)

(a)   It shall be the duty of the operator of a sexually oriented business:

(1)   To initiate and enforce a no loitering policy within the external boundaries of the real property upon which the sexually oriented businesses is located;

(2)   To post conspicuous signs stating that no loitering is permitted on such property;

(3)   To designate one or more employees to monitor the activities of persons within the exterior boundaries of such property by visually inspecting such property at least once every 30 minutes or by regularly monitoring such area by use of video cameras and monitors; and

(4)   To provide adequate lighting of the exterior premises to provide for visual inspection or video monitoring to prohibit loitering. Any video camera monitoring system shall operate continuously at all times that the premises is open for business. The monitors shall be installed within a manager’s station.

(b)   It shall be unlawful for a person having a duty under this section to knowingly fail to fulfill that duty.

(Ord. 4441-03)

A person who violates any provision of this article is guilty of a Class A violation and punishable as prescribed for such violations under Article 12 of the Uniform Public Offense Code as adopted under Section 17-101 et seq. of the Code of the City of Newton, Kansas.

(Ord. 4441-03)

The establishment or operation of a sexually oriented business without a valid license in violation of this article shall constitute a nuisance, and any person who operates or causes to be operated such business shall be subject to a suit for injunctive relief as well as prosecution for criminal violations.

(Ord. 4441-03)

The provisions of this article shall apply to the activities of all persons and sexually oriented businesses described herein, whether such businesses or activities were established or commenced before, on or after the effective date of this article.

(Ord. 4441-03)

If for any reason any section, subsection, sentence, clause or phrase of this article or the application thereof to any person or circumstance is declared to be unconstitutional or invalid or unenforceable, such decision shall not affect the validity of the remaining portions of this article.

(Ord. 4441-03)