Ordinance 92-02-23

 

An Ordinance Regulating and Licensing Sexually Oriented Businesses in the City of Horn Lake, Mississippi

 

 

        Whereas, the Mayor and Board of Aldermen of the City of Horn Lake, Mississippi, desire to regulate and license sexually oriented businesses within it’s corporate boundaries; and

 

        Whereas, the Mayor and Board of Aldermen find that the unregulated operation of the below described businesses begets unsanitary conditions and unhealthy and unwholesome activities at such businesses, and in order to safeguard the health and well-being of the citizenry, to improve sanitary conditions in certain public places, and to provide for an improvement in the prevention of communicable diseases; and

 

        Whereas, the Mayor and Board of Aldermen are aware of an Ordinance of the Board of County Commissioners of Shelby County, Tennessee, and do premise this Ordinance in a fashion to conform to the United States Supreme Court Case of FW/PBS, Inc., v City of Dallas, reported at Volume 110 of the Supreme Court Reporter, page 596, et seq. (1990), and on amendments made in accordance with and pursuant to that decision; and

 

        Whereas, the Mayor and Board of Aldermen have determined that public necessity dictates the provisions herein; and

 

        NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND BOARD OF ALDERMEN OF THE CITY OF HORN LAKE, DESOTO COUNTY, MISSISSIPPI:

 

Section 1.   Purpose and Intent

        It is the purpose of this chapter to regulate sexually oriented businesses to promote the health, safety, morals, and general welfare of the citizens of the City and to establish reasonable and uniform regulations to prevent concentrations of sexually oriented businesses within the City.  The provisions of this chapter have neither the purpose nor effect of imposing a limitation of restriction on the content of any communicative materials, including sexually oriented materials.  Similarly, it is neither the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market.

 

Section 2.  Definitions

1.    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 so displayed are distinguished or characterized by the depicting or describing of “specified anatomical areas.”

2.    Adult Bookstore or Adult Video Stores means a commercial establishment which as one of its principal business purposes offers for sale or rental for any forms of consideration any one or more of the following:

a.    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 describes “specified sexual activities” and “specified anatomical area: or

b.    Instruments, devices, or paraphernalia, which are designed for use in connection with “specified sexual activities”.

c.     Adult Cabaret means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:

3.    Persons who appear in a state of nudity; or

4.    Live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities”; or

5.    Films, motion pictures, videocassettes, slides, or other photographic reproductions, which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”.

6.    Adult Motel means a hotel, motel or similar commercial establishment which:

a.    Offers accommodations to the public for any form of considerations; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas”; and may have a sign visible from the public right of way which advertises the availability of this adult type of photographic reproductions, this shall not include “R-rated” movies so defined by the Motion Picture Association; or

b.    Offers a sleeping room for rent more than 2 times in a period of 10 hours; or

c.     Allows a tenant or occupant of a sleeping room to sub rent the room for a period of time less than 10 hours; or

d.    Offers or allows a discount or refund which is less than half the normal daily rate, and is given in connection with short-term occupancy as set forth hereinabove.

7.    Adult Motion Theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas: this shall not include “R-rated” movies as defined by the Motion Pictures Association.

8.    Adult Telecommunications Business means a commercial establishment where, by means of telephone, any communication characterized by the description of “specified anatomical areas” or “specified sexual activities” are made for commercial purposes to any person, regardless of whether the maker of such communication placed the call.  Adult telecommunication businesses are exempt from the permit requirements of this chapter but shall comply with its locational requirements.

9.    Adult Theater means a theater, concert hall, auditorium, or similar commercial establishment, which regularly features persons who appear in a state of nudity, semi-nudity or live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities”.

10.                       Chief means Chief of Police of the Horn Lake Police Department.

11.                       Director of Planning Department means the director of the planning department of the City of Horn Lake, Mississippi or his designated agent.

12.                       Escort means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.  This does not mean nonrevealing striptease performed for special occasions through an agency designed to entertain.

13.                       Escort Agency means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration.

14.                       Establishment means and includes any of the following:

a.    The opening or commencement of any sexually oriented business as a new business;

b.    The conversion of any existing business, whether or not a sexually oriented business, to any sexually oriented business;

c.     The addition of any sexually oriented business to any other existing sexually oriented business; or

d.    The relocation of any sexually oriented business.

15.                       Landmark District means a geographically definable area with a concentration of landmark buildings, objects or sites.

16.                       Nude Motel Studio means any place where a person who appears in a state of nudity or displays “specified anatomical areas” is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.

17.                       Nudity or a State of Nudity means:

a.    The appearance of a human bare buttock, anus, male genitals, female genitals, or female bare breast; or

b.    A state of dress, which fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast.

18.                       Operates or Causes to be Operated means to cause to function or to put or keep in operation.  A person may be found to be operating or causing to be operating a sexually oriented business whether or not that person is an owner, part-time owner, or permit of the business.

19.                       Permittee means a person in whose name a permit to operate a sexually oriented business has been issued, as well as the individual listed as an applicant on the application for a permit.  “Permittee” shall include an operator of an adult telecommunications business only for purposes of Section 5.

20.                       Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.

21.                       Residential District means a district whose designation begins with the letter “R” or “RM” according to the City of Horn Lake Zoning and Subdivision Regulations Ordinance.

22.                       Residential Use means any building or portion of a building used as a dwelling unit.

23.                       Semi Nude means a state of dress in which clothing covers no more than the genitals, pubic region, and areola of the female breast, as well as portions of the body covered by supporting straps or devices.

24.                       Sexual Encounter Center means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration;

a.    Physical contact in the form of wrestling or tumbling between two persons of the opposite sex; or

b.    Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude.

25.                       Sexually Oriented Business means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center or adult telecommunications business for the purpose noted in Section 3. (6)

26.                       Specified Anatomical Areas means:

a.    Less than completely and opaquely covered :

1.  Human gentiles, pubic regions,

2.  Buttock, and

3.  Female breast below a point immediately above the top of the areola, and

b.    Human male genitals in a discernible turgid state, even if completely and opaquely covered.

c.      Use of artificial devices or inanimate objects to depict any of the prohibited activities described above.

27.                       Specified Sexual Activities means:

a.    Human genitals in a state of sexual stimulation or arousal;

b.    Acts of human masturbation, sexual intercourse or sodomy;

c.     Fondling or other erotic touching of human genitals, pubic region, buttock or female breast;

d.    Acts of bestiality;

e.    Use of artificial devices or, inanimate objects to depict any of the activities described in this section.

28.                       Substantial Enlargement of sexually oriented business means the increase in floor area occupied by the business by more than 25 percent, as the floor area exists on the 1st day of February, 1992.

29.                       Transfer of Ownership or Control of a sexually oriented business means and includes any of the following:

a.    The sale, lease or sublease of the business;

b.    The transfer of securities which constitutes a controlling interest in the business, whether by sale, exchange, or similar means; or

c.     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.

Section 3.  Classification

                Sexually oriented businesses are classified as follows:

a.    Adult arcades;

b.    Adult bookstores or adult video stores;

c.     Adult cabarets;

d.    Adult Motels;

e.    Adult Motion Picture Theaters;

f.      Adult telecommunications businesses, but only for purposes of Section 17,13,14,21 and 22;

g.    Adult theaters;

h.    Escort agencies;

i.       Nude model studios; and

j.      Sexual encounter centers

 

 

Section 4.  Permit Required

a.    Person commits an offense if he operates a sexually oriented business with a valid permit, issued by the City for the particular type of business.

b.    For purposes of this Ordinance within the City of Horn Lake, Mississippi, issuance, suspension, and revocation of said permit shall be handled by the Director of the Planning Department.

c.     An application for a permit must be made on a form provided by the Director of the Planning Department.  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 or the premises to an accuracy of plus or minus six inches.  Applicants who must comply with Section 19 of this chapter shall submit a diagram meeting the requirements of Section19.

d.    The applicant must be qualified according to the provisions of this chapter.

e.    If a person who wishes to operate a sexually oriented business is an individual, he must sign the application for a permit as applicant.  If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has any interest in the business must sign the application for a permit as applicant.  Each applicant must be qualified under Section 5 and each applicant shall be considered a permittee if a permit is granted.

f.      The fact that a person possesses a valid theater permit, dance hall permit, or public house of amusement permit does not exempt him from the requirement of obtaining a sexually oriented business permit.  A person who operates a sexually oriented business and possesses a theater permit, public house of amusement permit or dance hall permit shall comply with the requirements and provisions of this chapter, as well as, the requirements and provisions of all other Horn Lake and Desoto County building, fire, health and other permit codes.

g.    A permit may be issued only in the name of a natural person.

h.    Every permittee shall, before employing any person or using the services of any independent contractor in the operation of or entertainment at a sexually oriented business, secure from the Horn Lake Planning Department an employee’s permit authorizing such person to serve as an employee or independent contractor in the place of business of the permittee to ensure that each person so employed in the permittee’s place of business has an employee’s permit as above required, which permit must be upon the sexually oriented business premises at all times subject to inspection by the Director of Planning or the Chief of Police, or their duly authorized agents.

        No employee’s permit may be issued for any person who has been convicted of an offense listed in Section 5(a) 8(A) for which the time period required in Section 5(a) 8(B) has not elapsed.

 

        An employee’s permit issued pursuant to the provisions of this section shall be valid for a three year period and shall be subject to the suspension or revocation for breaches of Section 9 and 10 of this chapter.  An employee’s permit shall be revoked upon the employee’s or independent contractor’s conviction of an offense listed in Section 5(a) 8(A).

 

        Applications for renewal shall be made in the same manner as applications for original permits upon forms to be prescribed by the Horn Lake Planning Department.  Such permits shall not be transferable and must be surrendered to the Horn Lake Planning Department within five days for the date the holder thereof ceases to work for or at a sexually oriented business, and it shall be the duty of the sexually oriented business permittee to notify the Horn Lake Planning Department within five oriented business permittee to notify the Horn Lake Planning Department within five days of the termination of the employment for which such permit was issued.

 

Section 5.  Issuance of Permit

a.      The Director of the Planning Department shall approve the issuance of a permit to an applicant within 30 days after receipt of an application unless the Chief of Police finds one or more of the following to be true:

1.      An applicant is under 18 years of age.

2.     An applicant is overdue in payment to the City and/or county of taxes, fees, fines or penalties assessed against or imposed upon the applicant in relation to a sexually oriented business.

3.    An applicant has failed to provide information reasonably necessary for issuance of the permit or has falsely answered a question or request for information on the application form.

4.     An applicant has been convicted of a violation of a provision of this article, other than the offense of operating a sexually oriented business without a permit, within two years immediately preceding the application.  The fact that a conviction is being appealed shall have no effect.

5.    The permit fee required by this chapter has not been paid.

6.    An applicant has been employed in a sexually oriented business in a managerial capacity within the preceding 12 months and has demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner, thus necessitating action by law enforcement officers.

7.    An applicant or the proposed establishment is in violation of or is not in compliance with Sections 7, 8, 12, 13, 14, 15, 16, 17, 18, 19, 20 of this ordinance.

8.    An applicant has been convicted of a crime:

a.      involving any of the following offenses as described in the Mississippi Code Annotated or juvenile laws of Mississippi, or similar federal violations.

1.    prostitution;

2.    promoting prostitution;

3.    the obscenity laws;

4.    sale, loan, distribution, or exhibition to one or more minors material which is harmful to minors;

5.    use of minors for obscene purposes;

6.    promotion of performances including sexual conduct by minors;

7.    indecent exposure;

8.    statutory rape;

9.    rape, aggravated rape, sexual battery, aggravated sexual battery or any assault of a sexual nature;

10.           incest;

11.           criminal attempt, conspiracy, or solicitation to commit any of the foregoing offenses.

b.    for which:

1.     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 last date, if the conviction is of a misdemeanor offense;

2.    less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or

3.    less than five years have elapsed since the date of conviction or the date of release from confinement for the 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.

c.      The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.

d.     An applicant who has been convicted of any offense listed in Subsection (a) (8) may qualify for a sexually oriented business permit only when the time period required by Section 5(a) (10)(B) of this Ordinance has elapsed.

e.    The permit, 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 sexually oriented business.  The permit 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.

 

 

Section 6.  Fees

a.    The annual fee for a sexually oriented business permit is $1,000.00

b.    The annual fee for a permit issued on a date other than the annual expiration date shall be prorated according to the number of days remaining until the expiration date.

c.     The applicant for an employee’s permit shall pay to the Horn lake Planning Department the sum of fifteen dollars therefore.

d.    Fees shall be collected by the Horn Lake Planning Department at the time of issuance of the permit.

 

 

Section 7.  Inspection

        (a)    An applicant or permittee shall permit representatives of the planning department, police department, health department, fire department, housing and neighborhood services department, and building inspection division to inspect the premises of a sexually oriented business for the purpose of insuring compliance with the law, at any time it is occupied or open for business.

 

        (b)    A person who operates a sexually oriented business or his agent, employee or independent contractor commits an offense if he refuses to permit a lawful inspection of the premises by a representative of the planning department, police department, health department, fire department, neighborhood services department and building inspection division at any time it is occupied or open for business.

 

 

Section 8.  Expiration of Permit

                Each permit shall expire the 31st day of December of each year and may be renewed only by making application as provided in this Chapter.  Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days will not be affected.

 

Section 9.  Suspension

                The Department of Planning shall suspend a permit for a period not to exceed 30 days if he determines that a permit of an employee or agent of a permittee or independent contractor employed by the permitted premises has:

 

a.  violated or is not in compliance with Sections 7, 12, 13, 15, 16, 17, 18, 19, or 20 of this chapter.

b.  engaged in excessive use of alcoholic beverages while on the sexually oriented business premises.

c.  refused to allow an unimpeded inspection of the sexually oriented business premises as authorized by this chapter.

        d.  knowingly permitted gambling by any person on the sexually oriented business premises.

e.  demonstrated inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers.

 

Section 10.  Revocation

(a)    The Director of the Planning Department of the City shall revoke a permit in his jurisdiction if a cause of suspension in Section 9 occurs and the permit has been suspended within the preceding12 months.

                (b)    The Director of the Planning Department shall revoke a permit if he determines that:

(1)            a permittee gave false or misleading information in the material submitted during the application process;

(2)            a permittee or an employee, agent or independent contractor employed on the premises has allowed possession, use, or sale of controlled substances on the premises;

(3)            a permittee or an employee agent or independent contractor employed on the premises operated the sexually oriented business during a period of time when the permittee’s permit was suspended;

(4)            a permittee or an employee, agent or independent contractor employed on the premises operated the sexually oriented business during a period of time when the permittee’s permit was suspended;

(5)            a permittee has been convicted of an offense listed in Section 5(a)(B)(A) for which the time period required in Section 5(a)(8)(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 5(a)(8)(A) for which a conviction has been obtained, and the person or persons were employee agent or independent contractor employed on the premises of the sexually oriented business at the time the offenses were committed;

(7)            a permittee or an employee agent or independent contractor employed on the premises has allowed any act of sexual intercourse, sodomy, or copulation, masturbation, or sexual contact to occur in or on the permitted premises;

(8)            a permittee is delinquent in payment to the County Clerk for hotel occupancy taxes, ad Val Orem taxes, or sales tax related to the sexually oriented business.

(c)    The fact that a conviction is being appealed shall have no effect on the revocation of the permit.

(d)    When the Director of the Planning Department revokes a permit, the revocation shall continue for five years and no sexually oriented business shall be issued for that permittee for five years from the date revocation became effective.  If, subsequent to revocation, the Director of the Planning Department finds that the basis for the revocation has been corrected or abated, a permit may be granted to the applicant for said premises if at least 90 days have elapsed since the date the revocation became effective.  If the permit was revoked under Subsection (b)(5), an applicant may not be granted another permit until the appropriate number of years under Section 5 has elapsed.

 

 

Section 11.  Appeal

        If the Director of the Planning Department denies the issuance of a permittee, or a business believes it should be exempt, or a business desires to appeal a revocation or suspension, it shall be done in the following manner:

a.    Written notice of the denial or proposed suspension or revocation shall be sent to the permittee by certified mail, return receipt requested, or have delivered by process server.

b.    The appeal of revocation, suspension or exemption request must be filed with the Director of the Planning Department within 10 calendar days of receipt of notice.

c.     The hearing must be scheduled before the Mayor and Board of Aldermen within 60 days.  The formal rules of evidence do not apply.

d.    Where a permit is suspended or revoked, the suspension of the permit shall not occur within 60 days of notice of prior to the date of the hearing, whichever is less, unless the health officer determines there to be a health hazard or risk of disease at said location.  No issuance or reissuance of a permit shall occur until after the hearing.

e.    A decision of the Board must be made in writing to all parties within five (5) days of the conclusion of the hearing.

f.      An appeal of the decision of the committee shall be made by Writ of Certiorari to the Chancery Court of Desoto County, Mississippi.

g.    No permit shall be granted or extended during this appeal without a court ordered Writ of Supercedes.  Said appeal shall be filed within 30 calendar days after receipt of a Written decision by the Committee.

 

 

Section 12.Transfer of Permit

        A permittee shall not transfer this permit to another, nor shall a permittee operate a sexually oriented business under the authority of a permit at any place other than the street address designated in the appliances.

 

Section 13.  Location of Sexually Oriented Businesses

(a)            A person commits an offense if the operated or causes to be operated a sexually oriented business with 1500 feet of:

(1)            a duly organized and recognized church;

(2)            a public or private, elementary or secondary school;

(3)            a boundary of a residential or landmark district as defined in this Code

(4)            a public park; or

(5)            the property line of a lot devoted to a residential use as defined in this code.

(b)            A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 1500 feet of another sexually oriented business.

(c)             A person commits an offense if he causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.

(d)            For the purpose of subsection (a), measurement shall be made in a straight line, without regard to intervening structures of objects, from the nearest portion of the building or structure used as part of the premises where a sexually oriented business is conducted to the nearest property line of the premises of a church or public or private elementary or secondary school, or to the nearest boundary of an affected public park, residential district, or local historical district.

(e)            For purposes of subsection (b) of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

(f)              Any sexually oriented business lawfully operating on the 1st day of February, 1992, that is in violation of subsection (a) (b), or (c) of this section shall be deemed a nonconforming use and will be permitted to continue for a period not to exceed one year, unless sooner terminated for any reason or voluntarily discontinued.  In the event of termination of the business, anyone applying for reopening or for another sexually oriented business establishment at the premises will be considered a new applicant.  Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use.  If two or more sexually oriented businesses are within 1500 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is nonconforming.

(g)            A sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of the sexually oriented business permit, of a church, public or private elementary or secondary school, public park, residential district, or residential lot within 1500 feet of the sexually oriented business.  This provision applies only to the renewal of a valid permit, and does not apply when an application for a permit is submitted after a permit has expired or has been revoked.

 

 

Section 14.  Exemption from Location Restrictions

(a)            If the Director of the Planning Department denies the issuance of a permit to an applicant because the location of the sexually oriented business establishment is in violation of Section 13 of this ordinance, then the applicant may, not later than 10 calendar days after receiving notice for the denial, file with the Planning Department a written request for an exemption from the locational restrictions of Section 13.  The hearings shall be handled according to the procedure set out in Section 11.

(b)            If the written request is filed with the Planning Department within the 10-day limit, the Mayor and Board of Aldermen shall consider the request.  The Mayor and Board of aldermen shall set a date for the hearing within 60 days from the date the written request is received and public notice shall be issued.

(c)             A hearing by the Board may proceed if at least three of the Board members are present.  The Board shall hear and consider evidence offered by any interested person.  The formal rules of evidence do not apply.

(d)            The Board may, in its discretion, grant an exemption from the locational restrictions of Section 13 if it makes the following findings:

(1)            that the location of the proposed or existing sexually oriented business will not have a detrimental effect on nearby properties or be contrary to the public or welfare;

(2)            that the granting of the exemption will not violate the spirit and intent of this chapter of the code;

(3)            that the location of the proposed sexually oriented business will not downgrade the property values or quality of life in the adjacent areas or encourage the development of urban blight;

(4)            that the location of an additional sexually oriented business in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any efforts of urban renewal or restoration; and

(5)            that all other applicable provisions of this chapter will be observed.

(e)            The Board shall grant or deny the exemption by a majority vote.  Failure to reach a majority vote shall be decided on the basis of a preponderance of the evidence.  The decision of the Board is final.  Appeal shall be Writ of Certiorari to the Chancery Court of Desoto County.

(f)              If the Board grants the exemption, the exemption is valid for one year from the date of the Board’s action.  Upon the expiration of an exemption, the sexually oriented business is in violation of the locational restrictions of Section 13 until the applicant applies for and receives another exemption.

(g)            If the Board denies the exemption, the applicant may not re-apply for an exemption until at least 12 months have elapsed since the date of the Board’s action.

(h)            The grant of an exemption does not exempt the applicant from any other provisions of this chapter other than the locational restrictions of Section 13.

 

Section 15.  Additional Regulations for Escort Agencies

(a)            An escort agency and/or permittee shall not employ, use or allow the services of any person under the age of 18 years.

(b)            A person under the age of 18 years commits an offense if he appears in a state of nudity in or on the premises of a nude model studio.  It is a defense to prosecution under this subsection if the person under 18 years was in a restroom not open  to public view or persons of the opposite sex.

(c)             A person commits an offense if he appears in a state of nudity or knowingly allows another to appear in a state of nudity in an area of a nude model studio premises, which can be viewed, from the public right of way.

(d)            There shall be no bed, sofa, or mattress in any room on the premises of a nude model studio, except that a sofa may be placed in a reception room open to the public.

 

Section 16.  Additional Regulations for Adult Theaters and Adult Motion Picture Theaters

(a)The requirement and provisions of other sections of this code remain applicable to adult theaters and adult motion picture theaters.

(b)A person commits an offense if he knowingly allows a person under the age of 18 years to appear in a state of nudity in or on the premises of an adult theater or adult motion picture theater.

(c) A person under the age of 18 years commits an offense if he knowingly appears in a state of nudity in or on the premises of an adult theater or adult motion picture theater.

(d)It is a defense to prosecution under subsections (b) and (c) of this section if the person under 18 years was in a restroom not open to public view or persons of the opposite sex.

 

Section 17.  Additional Regulations for Adult Motels

        Evidence that a sleeping room in a hotel, motel or similar commercial establishment has been rented and vacated two or more times in a period of time that is less than 10 hours creates rebuttable presumption that the establishment is an adult motel as that term is defined in this chapter.

 

Section 18.  Regulations pertaining to Exhibition of Sexually Explicit Films or Videos

(a)            A person who operates or causes to be operated a sexually oriented business, 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)            Upon application for a sexually oriented business permit, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager’s stations and the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted.  A manager’s station may not exceed 32 square feet of floor area.  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 engineer’s or architect’s blueprint shall not be required; however each diagram should be oriented to the north or to some designated street or object and should 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 director 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 application shall be sworn to be true and correct by the applicant.

(3)            No alterations in the configuration or location of a manager’s station may be made without the prior approval of the Director of the Planning Department or his designee.

(4)            It is the duty of the owners and operators of the premises to ensure that at least one employee is on duty and situated in each manager’s station at all times that any patron is present inside the premises.

(5)            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 to which any patron is permitted access for any purpose excluding restrooms.  Restrooms may not contain video reproduction equipment.  If the premises has two or more manager’s stations designated, then the interior of the premises shall be configured in such 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 subsection must be done by direct sight from the manager’s station.

(6)            It shall be the duty of the owners and operators, and it shall also be the duty of any agents, employees and independent contractors employed at the premises present in the premises to ensure that the view area specified in Subsection (5) remains unobstructed by any doors, walls, merchandise, display racks or other materials at all times that any patron is present in the premises and to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to Subsection (1) of this section.

(7)            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 (1.0) footcandle as measured at the floor level.

(8)            It shall be the duty of the owners and operators and it shall also be the duty of any agents and employees present in the premises to ensure that the illumination described above, is maintained at all times that any patron is present in the premises.

(b)            A person having a duty under Subsection (1) through (8) of Subsection (a) above commits an offense if he fails to fulfill that duty.

 

Section 19.  Display of Sexually Explicit Material to Minors

(a)            A person commits an offense if, in a business establishment open to persons under the age of 18 years, he displays books, pamphlets, newspapers, magazines, films, or video cassettes, the cover of which depicts, in a manner calculated to arouse sexual lust or passion for commercial gain or to exploit sexual lust or perversion for commercial gain, any of the following:

(1)            human sexual intercourse, masturbation, or sodomy;

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

(3)            less than completely and opaquently covered human genitals, buttocks, or that portion of the female breast below the top of the areola; or

(4)            human male genitals in a discernibly turgid state, whether covered or uncovered.

(c)             In this section “display” means to locate an item in such a manner that, without obtaining assistance from an employee of the business establishment:

(1)            it is available to the general public for handling and inspection; or

(2)            the cover or outside packaging on the item is visible to members of the general public.

 

Section 20.  Enforcement

(a)            Except as provided by subsection (b), any person violating Section 13 of this chapter, upon conviction, is punishable by a fine not to exceed $50.00 per day per violation.  Said Ordinance may also be enforced by injunctive relief through Chancery Court of Desoto County.

(b)            If the sexually oriented business involved is a nude studio or sexual encounter center, then violation of Section 13 of this chapter is punishable as a misdemeanor.

(c)             Except as provided by subsection (b), any person violating a provision of this chapter other than Section 13, upon conviction, is punishable by a fine not to exceed $50.00 per day per violation.

(d)            It is a defense to prosecution under Section 4, 13 or 16 (d) that a person appearing in a state of nudity did so in a modeling class operated:

(1)            by a school licensed by the State of Mississippi; a college, community college, or university supported entirely or partly by taxation

(2)            by a private college or university which maintains and operates educational programs in which credits are transferable to a college, community college, or university supported entirely or partly by taxation; or

(3)            in a structure:

(a)            which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and

(b)            where in order to participate in an art class a student must enroll at least three days in advance of the class; and

(c)             where no more than one nude model is on the premises at any one time.

(e)            It is a defense to prosecution under Section 4(a) or Section 13 that each item of descriptive, printed film or video material offered for sale or rental, taken as whole, contains serious literary, artistic, political, or scientific value.

(f)              No alcohol permit may be issued for any sexually oriented business premises within the prescribed areas of Section 13.

(g)            Policing and enforcement of this Ordinance shall be carried out by the Police Department or Planning Department of the City of Horn Lake, Mississippi.

 

Section 21.  Injunction

        A person who operates or causes to be operated a sexually oriented business without a valid permit or in violation of Section 13 of this chapter is subject to a suit for injunction as well as prosecution for criminal violations.

 

Section 22.        BE IT FURTHER ORDAINED, that the provisions of this ordinance are hereby declared to be severable.  If any of these sections, provisions, sentences, clauses, phrases, or parts is held unconstitutional or void, the remainder of this Ordinance shall continue in full force and effect.

 

Section 23.        BE IT FURTHER ORDAINED, that this Ordinance shall take effect thirty (30) days from the date of the first publication after being duly signed by the Mayor and attested to by the City Clerk.

 

Section 24.        That this Ordinance shall become effective thirty days after the first date of publication in a countywide newspaper.

 

SO ORDAINED, this the 10th day of February, 1992.