Adopted by the Board of Selectmen on April 18, 2000
Published in the Manchester Extra on April 27, 2000
Effective Date: May 12, 2000
ADULT-ORIENTED ESTABLISHMENTS
REGULATION OF WITHIN THE TOWN OF BOLTON
Be it ordained by the Board of Selectmen of the Town of Bolton, Connecticut, that the following ordinance be established concerning adult-oriented establishments.
I. Findings and Purpose
The Board of Selectmen of the Town of Bolton, Connecticut finds:
A. Adult-oriented establishments require special supervision from the Town’s public safety agencies in order to protect and preserve health, safety and welfare of the patrons of such establishments, as well as the health, safety and welfare of the Town’s citizens.
B. Statistics and studies performed by a substantial number of cities and towns in the United States indicate that:
(1) Large numbers of persons, primarily male, frequent such adult-oriented establishments, especially those which provide closed booths, cubicles, studios and rooms for the private viewing and/or live entertainment; and
(2) Such closed booths, cubicles, studios and rooms have been used by patrons, clients or customers of such adult-oriented establishments for the purpose of engaging in certain sexual acts; and
(3) Male and female prostitutes have been known to frequent such establishments in order to provide sex for hire to the patrons, clients or customers of such establishments within such booths, cubicles and rooms; and
(4) Doors, curtains, blinds and/or other closures installed in or on the entrances and/or exits of such booths, cubicles, studios and rooms which are closed while such booths, cubicles, studios and rooms are in use encourage patrons using such booths, cubicles, studios and rooms to engage in sexual acts therein with prostitutes or others, thereby promoting and encouraging prostitution and the commission of sexual acts which cause blood, semen and urine to be deposited on the floors and/or walls of such booths, cubicles, studios and rooms, which deposits could prove detrimental to the health and safety of other persons who may come into contact with such deposits; and
(5) The reasonable regulation and supervision of such adult-oriented establishments tends to discourage such sexual acts and prostitution and thereby promotes the health, safety and welfare of the patrons, clients and customers of such establishments.
C. Unregulated operation of adult-oriented establishments is and would be detrimental to the general welfare, health and safety of the citizens of Bolton.
D. The Constitution and laws of the State of Connecticut grant to the Town powers, especially police power, to enact reasonable legislation and measures to regulate and supervise adult-oriented establishments as hereinafter defined in order to protect public health, safety and welfare.
E. It is not the intent of the Board of Selectmen, in enacting this ordinance, to deny to any person rights to speech protected by the United States and/or State Constitutions, nor is it the intent of the Board of Selectmen to impose any additional limitations or restrictions on the contents of any communicative materials, including sexually oriented films, videotapes, books and/or other materials. Further, by enacting this chapter, the Board of Selectmen does not intend to deny or restrict the rights of any adult to obtain and/or view any sexually oriented materials protected by the United States and/or State Constitutions, nor does it intend to restrict or deny any constitutionally protected rights that distributors or exhibitors of such sexually oriented materials may have to sell, distribute or exhibit such materials.
II. Definitions
ADULT BOOKSTORE – An establishment having a substantial or significant portion of its stock and trade in books, films, videocassettes or magazines and other periodicals, which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined below, and in conjunction therewith has facilities for the presentation of adult entertainment, as defined below, and including adult-oriented films, movies or live entertainment, for observation by patrons or other persons therein.
ADULT ENTERTAINMENT – Any exhibition of any adult-oriented motion pictures, live performances, display or dance of any type which has a significant or substantial portion of such performance any actual or simulated performance of specified sexual activities or exhibition and viewing of specified anatomical areas, removal of articles of clothing or appearing unclothed, pantomime, modeling or any other personal services offered customers or other persons.
ADULT MINI-MOTION PICTURE THEATER – An enclosed building with a capacity of fewer than fifty (50) persons regularly used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined below, for observation by patrons or other persons therein.
ADULT MOTION PICTURE THEATER – An enclosed building with a capacity of fifty (50) or more persons regularly used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined below, for observation by patrons or other persons therein.
ADULT-ORIENTED ESTABLISHMENT – Shall include, without limitation, adult bookstores, adult motion picture theaters, adult mini-motion picture theaters, business premises utilized to demonstrate, display or share sexual acts or activities and further means any premises to which the public, patrons or members are invited or admitted and which are so physically arranged as to provide booths, cubicles, rooms, studios, compartments or stalls separate from the common areas of the premises for the purpose of viewing adult-oriented motion pictures or sexual activities or any premises wherein an entertainer or other person provides adult entertainment to a member of the public, a patron or a member, when such adult entertainment is held, conducted, operated or maintained for a profit, direct or indirect. An “adult-oriented establishment” further includes, without limitation, any adult entertainment studio or any premises that are physically arranged and/or used as such, whether advertised or represented as an adult entertainment studio, rap studio, photography studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio, swinger studio or any other term of like import.
EMPLOYEE – Any and all persons, including independent contractors, who work in or at or render any services directly related to the operation of an adult-oriented establishment.
ENTERTAINER – Any person who provides entertainment within an adult-oriented establishment as defined in this section, whether or not a fee is charged or accepted for entertainment and whether or not entertainment is provided as an employee or an independent contractor.
INSPECTOR – An employee of the Town of Bolton designated by the First Selectman who shall hereby by authorized to inspect premises regulated under this chapter and to take the required actions authorized by this chapter in case of violations being found on such premises and to require corrections of unsatisfactory conditions found on said premises.
MINOR – A person under the age of eighteen (18) years.
OPERATOR – Means any person, partnership, corporation or other entity operating, conducting or maintaining an adult-oriented establishment.
SEXUAL ACTIVITIES – As used in this ordinance, is not intended to include any medical publications or films or bona fide educational publications or films, nor does it include any art or photography publications, which devote at least twenty-five percent (25%) of the lineage of each issue to articles and advertisements dealing with subjects of art or photography. Nor does this definition apply to any news periodical which reports or describes current events and which, from time to time, publishes photographs of nude or semi-nude persons in connection with the dissemination of the news. Nor does this definition apply to publications or films, which describe and report different cultures of which, from time to time, publish or show photographs or depictions of nude or semi-nude persons when describing cultures with which nudity or semi-nudity is indigenous to the population.
SPECIFIED ANATOMICAL AREAS:
A. Less than completely and opaquely covered:
(1) Human or animal genitals or pubic region;
(2) Buttocks; or
(3) Female breasts below a point immediately above the top of the areaola.
B. Human or animal genitals in a discernibly turgid state, even if completely opaquely covered.
SPECIFIED SEXUAL ACTIVITIES
A. Human or animal genitals in a state of sexual stimulation or arousal.
B. Acts of human or animal masturbation, sexual intercourse or sodomy.
C. Fondling or erotic touching of human or animal genitals, pubic region, buttocks or female breasts.
III. License Required
A. A person commits an offense if he operates an adult-oriented establishment without a valid license, issued by the Town for the particular type of business.
B. An application for a license must be made on a form provided by the First Selectman. The application must 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 must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.
C. The applicant must be qualified according to the provisions of this Ordinance and the premises must be inspected and found to be in compliance with the law by the health department, fire department, zoning official and building official which approval or denial shall be made within 30 days of request to such agency for approval, or within such statutory times that may be applicable; in the event any such agency denies such approval, the applicant may appeal according to the applicable laws or may apply for an exemption as provided in this Ordinance.
D. If a person who wishes to operate an adult-oriented establishment is an individual he must sign the application for the license as applicant. If a person who wishes to operate an adult-oriented establishment is other than an individual, each individual who has a 20 percent or greater interest in the business must sign the application for a license as applicant. Each applicant must be qualified under and each applicant shall be considered a licensee if a license is granted.
E. The fact that a person possess any other business license, land use approval or state permission does not exempt him from the requirement of obtaining an adult-oriented establishment license pursuant to this Ordinance.
IV. Issuance of License
A. The First Selectman shall approve the issuance of a license by the assessor and collector of taxes to an applicant within 30 days after receipt of an application unless he finds one or more of the following to be true:
(1) An applicant is under 18 years of age;
(2) An applicant or an applicant’s spouse is overdue in his payment to the Town of taxes, fees, fines, or penalties assessed against him or imposed upon him in relation to an adult-oriented establishment;
(3) An applicant has failed to provide information reasonably necessary for issuance of a license or has falsely answered a question or request for information on the application form;
(4) An applicant or an applicant’s spouse 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;
(5) An applicant is residing with a person who has been denied a license by the Town to operate a sexually oriented business within the preceding 12 months, or residing with a person whose license to operate a sexually oriented business has been revoked within the preceding 12 months;
(6) The premises to be used for the adult-oriented establishment have not been approved by the zoning authorities, land use authorities, health, fire and building officials as being in compliance with applicable laws and ordinances;
(7) The license fee required by this Ordinance has not been paid;
(8) An applicant has been employed in an adult-oriented establishment in a managerial capacity within the preceding 12 months and has demonstrated that he is unable to operate or manage an adult-oriented establishment premises in a peaceful and law-abiding manner;
(9) An applicant or the proposed establishment is in violation of or is not in compliance with any Section hereof and/or is in violation of any zoning or municipal regulation affecting adult-oriented establishments;
(10) An applicant or an applicant’s spouse has been convicted of or is under indictment or misdemeanor information for a crime:
(a) involving:
(i) any of the following offenses as described in Connecticut Penal Code, and state, or those of the United States of America:
(aa) prostitution;
(bb) promotion of prostitution;
(cc) aggravated promotion of prostitution;
(dd) compelling prostitution;
(ee) obscenity;
(ff) sale, distribution, or display of harmful material to minor;
(gg) sexual performance by a child;
(hh) possession of child pornography;
(ii) any of the following offenses as described in Connecticut Penal Code:
(aa) public indecency;
(bb) indecent exposure;
(cc) risk of injury to a minor;
(iii) organized criminal activity as described in Connecticut Penal Code;
(iv) sexual assault of any degree or any felony;
(v) criminal attempt, conspiracy, to commit or accessorial liability in the commission, for any of the foregoing offenses;
(b) for which:
(i) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
(ii) less than five years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a felony offense; or
(iii) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24 month period.
B. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or applicant’s spouse.
C. An applicant who has been convicted or whose spouse has been convicted of an offense listed for which the required time period has elapsed since the date of conviction or the date of release from confinement imposed for the conviction, may qualify for an adult-oriented establishment license only if the First Selectman determines that the applicant or applicant’s spouse is presently fit to operate an adult-oriented establishment. In determining present fitness under this section, the First Selectman shall consider the following factors concerning the applicant or applicant’s spouse, whichever had the criminal conviction:
(1) the extent and nature of his past criminal activity;
(2) his age at the time of the commission of the crime;
(3) the amount of time that has elapsed since his last criminal activity;
(4) his conduct and work activity prior to and following the criminal activity;
(5) evidence of his rehabilitation or rehabilitative effort while incarcerated or following release; and
(6) other evidence of his present fitness, including letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for him; the sheriff, chief criminal enforcement officer and First Selectman in the community where he resides; and any other persons in contact with him.
D. It is the responsibility of the applicant, to the extent possible, to secure and provide to the First Selectman the evidence required to determine present fitness under Subsection (C) of this section.
E. The license, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the adult-oriented establishment. The license shall be posted in a conspicuous place at or near the entrance to the adult-oriented establishment so that it may be easily read at any time.
V. Fees.
A. The annual fee for an adult-oriented establishment license is $500.00.
B. This fee and application shall be in addition to any other fees and application required by the particular use(s) of the premises.
VI. Requirements for Adult-Oriented Establishments
A. No operator or employee of an adult-oriented establishment shall allow or permit any minor or intoxicated person to loiter in any part of such establishment, including parking lots immediately adjacent to such establishment used by patrons of such adult-oriented establishment.
B. Every adult-oriented establishing doing business in the Town on or after the effective date of this ordinance, shall be well lighted at all times and be physically arranged in such a manner that the entire interior portion of the booths, cubicles, rooms or stalls wherein adult entertainment is provided shall be clearly visible from the common areas of the premises. Visibility into such booths, cubicles, rooms or stalls shall not be blocked or obscured by doors, curtains, partitions, drapes or any other obstruction whatsoever. It shall be unlawful to install enclosed booths, cubicles, rooms or stalls within adult-oriented establishments for whatever purpose, but especially for the purpose of providing for the secluded viewing of adult-oriented motion pictures or other types of adult-oriented entertainment.
C. Upon the effective date of this ordinance, the operator of each adult-oriented establishment shall be responsible for and shall provide that any room or other area used for the purpose of viewing adult-oriented motion pictures or other types of live adult entertainment shall be well-lighted and readily accessible at all times and shall be continuously open to view in its entirety. The 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 and zero-tenths (1.0) foot-candle as measured at the floor level. It shall be the duty of the operator and his agents to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
D. Every act or omission by an employee constituting a violation of the provisions of this chapter shall be deemed the act of omission of the operation if such act or omission occurs either with the authorization, knowledge or approval of the operator or as a result of the operator’s negligent failure to supervise the employee’s conduct, and the operator shall be punishable for such act or omission in the same manner as if the operator committed the act or caused the omission.
E. An operator shall be responsible for the conduct of all employees which on the licensed premises, and any act or omission of any employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator for purposes of determining whether the operator shall be subject to the penalties imposed by this ordinance.
F. All adult-oriented establishments shall be open to inspection at all reasonable times by an inspector employed by the Town or such other person(s) as the First Selectman may designate.
VII. Expiration of License
A. Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in Section III. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected.
B. When the First Selectman denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. If, subsequent to denial, the First Selectman finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date denial became final.
VIII. Suspension
A. The First Selectman shall suspend a license for a period not to exceed 30 days if he determines that a licensee or an employee of a licensee has:
(1) violated or is not in compliance with any section hereof;
(2) engaged in excessive use of alcoholic beverages while on the adult-oriented establishment premises;
(3) refused to allow an inspection of the adult-oriented establishment premises as authorized by this Ordinance;
(4) knowingly permitted gambling by any person on the adult-oriented establishment premises; or
(5) demonstrated inability to operate or manage an adult-oriented establishment in a peaceful and law-abiding manner thus necessitating action by law enforcement officers.
IX. Revocation
A. The First Selectman shall revoke a license if a cause of suspension in Section VIII occurs and the license has been suspended within the preceding 12 months.
B. The First Selectman shall revoke a license he determines that:
(1) a licensee gave false or misleading information in the material submitted to the First Selectman during the application process;
(2) a licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises;
(3) a licensee or an employee has knowingly allowed prostitution on the premises;
(4) a licensee or an employee knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended;
(5) a licensee has been convicted of an offense listed in Section IV.A.(10) for which the time period required in Section IV.A.(10)(b) has not elapsed;
(6) on two or more occasions within a 12-month period, a person or persons committed an offense occurring in or on the licensed premises of a crime listed in Section IV.A.(10), for which a conviction has been obtained, and the person or persons were employees of the adult-oriented establishment at the time the offenses were committed;
(7) a licensee or an employee has knowingly allowed any specified sexual activity, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the licensed premises. The term “sexual activity” shall have the same meaning as it is defined in Section II.B; or
(8) a licensee is delinquent in payment to the Town for hotel occupancy taxes, ad valorem taxes, or sales taxes related to the adult-oriented establishment.
C. The fact that a conviction is being appealed shall have no effect on the revocation of the license.
D. Subsection (b)(7) does not apply to adult motels as a ground for revoking the license.
E. When the First Selectman revokes a license, the revocation shall continue for one year and the licensee shall not be issued an adult-oriented establishment license for one year from the date revocation became effective. If, subsequent to revocation, the First Selectman 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 (b)(5), an applicant may not be granted another license until the appropriate number of years required under Section IV.A.(10)(b) has elapsed since the termination of any sentence, parole, or probation.
X. Appeal
If the First Selectman denies the issuance of a license, or suspends or revokes a license, he shall send to the applicant, or licensee, by certified mail, return receipt requested, written notice of his action and the right to an appeal. The aggrieved party may appeal the decision of the First Selectman to a permit and license appeal board that shall consist of the Town’s current sanitation and health official, the Town’s fire marshal, and the actual or acting chairman of the Town’s Planning and Zoning Commission. The filing of an appeal stays the action of the First Selectman in suspending or revoking a license until the permit and license appeal board makes a final decision. Within fourteen days of the receipt of the appeal, the appeal board shall provide to putatively aggrieved party written notice of the time and place of a hearing to be held before it no fewer than seven days prior to the hearing. The appeal board shall hold a hearing within 21 days of the date of the receipt of the appeal. During the hearing it shall determine if the appellant is aggrieved, and shall have the power to hear evidence on the appeal and render a decision. The appeal board shall render a decision within fourteen days after closing the hearing, and no more than 60 days after receipt of the appeal, unless the aggrieved party consents to additional time. The board shall grant or deny the exemption by a majority vote. Failure to reach a majority vote shall result in denial of the exemption. Disputes of fact shall be decided on the basis of a preponderance of the evidence. The decision of the permit and license appeal board is final.
XI. Transfer of License
A licensee shall not transfer his license to another, nor shall a licensee operate an adult-oriented establishment under the authority of a license at any place other than the address designated in the application.
XII. Penalties and Prosecution
A. Any person, partnership, or corporation who or which is found to have violated this chapter shall be fined a definite sum not exceeding one hundred dollars ($100) for each such violation.
B. Each violation of this chapter shall be considered a separate offense, and any violation continuing more than one (1) hour of time shall be considered a separate offense for each hour of violation.
XIII. Savings Clause
Should any court of competent jurisdiction 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.
XIV. Effective Date
This Ordinance shall become effective fifteen (15) days after publication in a newspaper having a circulation in the Town of Bolton.
Said notice is given in accordance with the provisions of Section 5.2 (E) and (F) of the Bolton Town Charter.
Dated at Bolton, Connecticut, this 19th day of April, 2000.
Susan M. DePold
Town Clerk of Bolton