(A) The purpose of these regulations is to provide for the regulation and licensing of sexually oriented businesses within the city in a manner that will protect the property values, neighborhoods, and residents from the potential adverse secondary effects of sexually oriented businesses while providing to those who desire to patronize sexually oriented businesses the opportunity to do so. It is not the intent of this chapter to suppress any speech activities protected by the First and Fourteenth Amendments of the United States Constitution or article II, section 10 of the Colorado Constitution, but to impose content-neutral regulations, which address the adverse secondary effects of sexually oriented businesses. Nothing in this chapter is intended to authorize or license anything otherwise prohibited by law.

(B) Sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution. The concern over sexually transmitted diseases is a legitimate health concern of the city which demands reasonable regulation of sexually oriented businesses to protect the health and well-being of citizens, including the patrons of sexually oriented businesses. Licensing is a legitimate and reasonable means of ensuring that operators comply with regulations and do not knowingly allow their business to be used as places of illegal sexual activity or solicitation. There is convincing documented evidence that sexually oriented businesses, because of their nature, have a deleterious effect on both the existing businesses around them and surrounding residential areas, causing increased crime and downgrading of property values. The purpose of this chapter is to control adverse effects and thereby protect the health, safety, and welfare of the citizens; protect them from increased crime; preserve the quality of life; preserve the property values and character of the surrounding neighborhoods and deter the spread of urban blight. (Ord. 1219 §1, 1997)

The following definitions apply for the purposes of this chapter:

(A) Adult arcade means any place to which the public is permitted or invited wherein, for any form or consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image-producing machines, for viewing by five or fewer persons each, are used to show 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.

(B) Adult bookstore, adult novelty store, or adult video store means a business having a substantial and significant portion of its stock and trade, revenues, space, or advertising budget, resulting from the sale, rental or viewing of one or more of the following:

(1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or

(2) Instruments, devices, or paraphernalia which are designed for specified sexual activities.

(C) Adult cabaret means a nightclub, bar, restaurant, or similar business 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, 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 motel, hotel, or similar commercial establishment which offers public accommodations, for any form of consideration, and 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 which advertises the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television, or any motel, hotel, or similar commercial establishment offering a sleeping room for rent for a period of time less than ten hours; or allows a tenant or occupant to sub-rent a sleeping room for a period of less than ten hours.

(E) Adult motion picture theater means a commercial establishment where 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 are regularly shown for any form of consideration.

(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 a person who works or performs in or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage, or other compensation by the operator of said business.

(H) Manager means any person other than a licensee who is employed by a sexually oriented business to act as a manager or supervisor of the employees, finances, or patrons of the business or is otherwise responsible for the operation of the business.

(I) Nude model studio means any place where a person, who appears in a state of nudity or displays "specified anatomical areas" is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons.

(J) Nudity or state of nudity means the appearance of human bare buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast; or a state of dress which fails to opaquely and fully cover a human buttock, anus, male or female genitals, pubic region or areola or nipple of the female breast.

(K) Peep booth means a viewing room of less than 150 square feet of floor space.

(L) Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.

(M) Private room means a room in an adult motel that is not a peep booth, has a bed in the room, has a bath in the room or adjacent to the room, and is used primarily for lodging.

(N) Sexual encounter establishment means a business or commercial establishment that, as one of its primary business purposes, offers for any form of consideration a place where two or more persons may congregate, associate, or consort for the purpose of specified sexual activities or the exposure of specified anatomical areas, when one or more of the persons is in a state of nudity or seminude. An adult motel will not be classified as a sexual encounter establishment by virtue of the fact that it offers private rooms for rent.

(O) Sexually oriented business means an adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, or sexual encounter establishment.

(P) Specified anatomical areas means less than completely and opaquely covered human genitals, pubic region, buttocks, and female breast below a point above the top of the areole; or male human genitals in a discernibly turgid state even if completely and opaquely covered.

(Q) Specified criminal acts means sexual crimes against children, sexual abuse, rape or crimes connected with another sexually oriented business, including, but not limited to, distribution of obscenity, prostitution, pandering, or tax violations.

(R) Specified sexual activities means acts, simulated acts, exhibitions, representation, depictions or descriptions of:

(1) Human genitals in a state of sexual stimulation or arousal.

(2) Fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breast.

(3) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, and sodomy.

(4) Masturbation or bestiality, actual or simulated, lewd exhibition of genitals, or excretory functions in connection with any other specified sexual activity, actual or simulated.

(S) Stage means a raised floor or platform at least three feet above the surrounding floor measured perpendicularly from the edge of the stage to the surrounding floor and at least thirty-six square feet in area. (Ord. 1219 §1, 1997)

It shall be unlawful for any person to operate a sexually oriented business unless licensed to do so as provided for by this chapter, and unless the license required is in full force and effect, and all applicable fees and taxes have been paid in full. (Ord. 1219 §1, 1997)

(A) All applications for new licenses shall be on forms provided by the city clerk.

(B) The application must be accompanied by a diagram showing the configuration of the premises, including a statement of total floor space occupied by the business, and designating the use of each room or other area of the premises.

(1) The diagram shall designate those rooms or other areas of the premises where patrons are not permitted.

(2) The 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.

(3) No alteration in the configuration of the premises or any change in use of any room or area as shown on the diagram may be made without the prior written approval of city council. The requirement for the foregoing diagram for renewal applications may be waived 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 and that the use of any area or room in the premises has not changed.

(C) The applicant must be qualified in accordance with the provisions of this chapter, and the premises must be inspected by the fire authority and building official.

(D) The application must include a vicinity map showing the location of existing or approved sexually oriented businesses, churches, schools, public parks and open space, residentially zoned or used property, or day care facilities within 1,500 feet of the site of the proposed licensed premises.

(E) Upon receipt of a completed application, the city clerk shall cause the completed application to be placed on the agenda of city council for a meeting to be held not more than thirty days after receipt of the application, and shall provide notice of public hearing on said application in accordance with section 17-52-030, B.M.C. (Ord. 1219 §1, 1997; Ord. 1401 §1, 1999)

(A) The sexually oriented business shall be issued a license unless during the public hearing before the city council, one or more of the following is found:

(1) An applicant for a sexually oriented business providing live nude entertainment is under the age of twenty-one years.

(2) An applicant for a sexually oriented business not providing live nude entertainment is under the age of eighteen years.

(3) There is evidence that serious criminal conduct would result from the granting of the license. Evidence that serious criminal conduct would result includes any finding that the applicant, manager, or employee has been convicted of a specified criminal act for which less than two years have elapsed since the date of conviction or date of release from confinement if the conviction is of a misdemeanor; or less than

five years have elapsed since the date of conviction or date of release from confinement if the conviction is for a felony or two or more misdemeanors.

(4) An applicant is overdue in payment to the city of taxes, fees, fines, or penalties assessed against the applicant or imposed upon the applicant in relation to a sexually oriented business.

(5) An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form.

(6) The premises to be used for the sexually oriented business have not been approved by the fire authority or building official as being in compliance with applicable laws and ordinances.

(7) The subject property to be used for the sexually oriented business is not zoned either B-1, B-2, I-1, or I-2.

(8) The setback requirements of section 5-36-120, or criteria for a variance therefrom, have not been met.

(B) The license, if granted, shall state on its face the name of the person to whom it is granted, the expiration date, and the address of the sexually oriented business. The 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.

(C) The fire authority and the building official shall complete their certification that the premises are in compliance or not in compliance within ten days of receipt of the application by the city clerk. Their certifications shall be promptly presented to the city clerk. Failure to conduct an inspection by either the fire authority or the building official shall not prejudice the application.

(D) Any decision of the city council on applications shall state in the official minutes the reasons for such decision. Any denial may be appealed in accordance with the provisions of Rule 106 of the Colorado Rules of Civil Procedure. (Ord. 1219 §1, 1997)

(A) It shall be unlawful for any person to work as a manager of a sexually oriented business without first registering with the city clerk.

(B) The city clerk shall register a manager if all of the requirements of a license as set forth in section 5-36-050 are met. (Ord. 1219 §1, 1997)

Each licensee shall provide to the city clerk the full name, aliases if any, address, telephone number, and date of birth of any employee within five days of employment. (Ord. 1219 §1, 1997)

(A) The licensee or the licensee's employees shall permit representatives of the police department, building department, fire authority, or other city departments or state or local agencies to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law as provided for in this section.

(B) City departments and agencies shall conduct such inspections in a reasonable manner and only as frequently as may be reasonably necessary.

(C) Inspections shall take place during the regular business hours of the sexually oriented business or when any person is on the premises.

(D) It shall be unlawful for the licensee or any employee to refuse to permit such lawful inspection of the premises as provided in this section. (Ord. 1219 §1, 1997)

Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in this chapter. (Ord. 1219 §1, 1997)

(A) After notice to the licensee and a hearing conducted by the city council, a sexually oriented business license may be suspended for a period not to exceed six months, or may be revoked if the city council determines that a licensee or any employee of a licensee has:

(1) Violated or is in violation of any section of this chapter.

(2) Refused to allow an inspection of the sexually oriented business premises as authorized by this chapter.

(B) In determining the action to be taken as provided in this section, the city council shall consider the following aggravating and mitigating circumstances:

(1) Whether the licensee has been previously suspended or revoked.

(2) Whether the licensee was warned that the conduct involved could lead to a suspension or revocation.

(3) Whether the cause for suspension or revocation involves one or several violations.

(4) Whether the violation or violations are technical or substantive in nature.

(5) The extent to which the licensee, licensee's agents and employees, as opposed to patrons, were involved in the violation or violations.

(6) The extent to which the licensee or licensee's employees had knowledge of the violation or violations.

(7) Any corrective or remedial action the licensee has taken to prevent similar violation or violations in the future.

(8) Whether the violation or violations involved the commission of a crime and, if so, the degree of felony or misdemeanor involved.

(9) The extent to which the violation or violations caused personal injuries or property damage.

(10) Whether the licensee has paid damages or made restitution to any person or entity damaged by the violation or violations.

(11) The extent to which the violation or violations posed a significant risk to the health, safety, or welfare of persons on or off the licensed premises.

(12) The length of time over which the violation or violations extended.

(13) The extent to which the licensee or licensee's employees realized a financial gain from the violation or violations.

(14) The number of employees, patrons, or both involved in the violation or violations.

(15) The nature and extent of enforcement action taken by the city or any law enforcement agency to detect the violation or violations.

(16) The involvement of any person under twenty-one years of age in the violation or violations.

(17) The extent to which the licensee or licensee's employees have attempted to cover up the violation or violations, destroy evidence, or otherwise hinder the investigation and detection of the violation or violations.

(18) The extent to which the licensee and licensee's employees have acted in good faith. (Ord. 1219 §1, 1997)

(A) After notice to the licensee and a hearing conducted by the city council, the city council may revoke a license if it determines that:

(1) A license has previously been suspended within the preceding twelve months;

(2) A licensee gave false information in the material submitted to city council, or failed to provide information reasonably necessary for the enforcement of this chapter;

(3) A licensee or employee has knowingly allowed possession, use, or sale of controlled substance as defined in part 3 of article 22 of title 12, C.R.S., on the premises;

(4) A licensee or an employee has knowingly allowed prostitution on the premises;

(5) A licensee or any employee knowingly operated the sexually oriented business during a period of time when the license was suspended;

(6) Excluding conduct within a private room of an adult motel, a licensee or employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur on the premises.

(B) When the city council 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 became effective. (Ord. 1219 §1, 1997)

(A) No sexually oriented businesses may operate within 1,500 feet of any of the following, whether within or without the city limits:

(1) Any church;

(2) Any school meeting all requirements of the compulsory education laws of the state;

(3) Any boundary of any residentially zoned or used property;

(4) Any day care facility, as defined in section 17-04-080, B.M.C.;

(5) Any public park or open space adjacent to any residential district;

(6) Any preschool; or

(7) Any other sexually oriented business.

(B) No sexually oriented business may be located within the same building, structure, or portion thereof of another sexually oriented business, except as provided in section 5-36-200, B.M.C.

(C) For purposes of this section, the one-thousand-five-hundred-foot separation measurement shall be made in a straight line without regard to intervening structures or objects from the nearest portion of the building or structure used as part of the premises where the sexually oriented business is conducted to the nearest property line of another sexually oriented business, church, school, public park, residentially zoned or used property, or day care facility.

(D) A variance to the separation requirement set forth in this section may be granted if the presumptions in section 5-36-010 are overcome by proof that the establishment of a sexually oriented business within 1,500 feet of another sexually oriented business establishment, or establishment of a sexually oriented business within 1,500 feet of any residential zoning district, residential use, park, church, school, day care facility, as applicable, will not have a deleterious effect on surrounding residential and business areas by creating blight, downgrading of property values, or tending to cause an increase in crime. In granting a variance to the distance requirements set forth in this section, the city council may impose reasonable conditions relating to hours of operation and screening. (Ord. 1219 §1, 1997; Ord. 1401 §2, 1999)

(A) It shall be unlawful for any person under the age of twenty-one years to be upon the premises of a sexually oriented business offering live nude entertainment, or for the employees or licensee of such an establishment to allow anyone under the age of twenty-one to be upon such premises.

(B) It shall be unlawful for any person under the age of eighteen years to be upon the premises of any sexually oriented business other than an establishment offering live nude entertainment, or for the employees or licensees of such establishments to allow anyone under the age of eighteen to be upon such premises. (Ord. 1219 §1, 1997)

(A) It shall be unlawful for a sexually oriented business to be open for business or for the licensee or any employee of a licensee to allow patrons upon the licensed premises from:

(1) On any Tuesday through Saturday from 2:00 a.m. until 7:00 a.m.;

(2) On any Monday, other than a Monday which falls on January 1, from 12:00 midnight until 7:00 a.m.;

(3) On any Sunday from 2:00 a.m. until 8:00 a.m.;

(4) On any Monday which falls on January 1 from 2:00 a.m. until 7:00 a.m.

(B) This section shall not apply to those areas of an adult motel which are private rooms. (Ord. 1219 §1, 1997)

(A) A licensee who has peep booths upon the premises shall comply with all of the following requirements:

(1) The diagram accompanying an application for a license shall specify the location of one or more manager's stations.

(2) It is the duty of the licensee 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.

(3) 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 rest rooms. Rest rooms may not contain film or video reproduction equipment or equipment for showing slides or photographs. If the premises has two or more manager's stations, 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 subsection must be by direct line of sight from the manager's station.

(4) It shall be the duty of the licensee and employees present on the premises to ensure that the view area specified in subsection (3) above remains unobstructed by any doors, walls, merchandise, display racks, or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated in the application as an area to which patrons will not be permitted.

(5) It shall be the duty of the licensee to ensure that all walls shall be maintained without holes or damage.

(6) No peep booth may be occupied by more than one person at any time.

(B) It shall be unlawful for any person having a duty under subsection (A) to knowingly fail to fulfill that duty. (Ord. 1219 §1, 1997)

(A) Excluding a private room of an adult motel, the interior portion of the premises to which patrons are permitted access shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place at an illumination of not less than two foot-candles as measured at floor level.

(B) It shall be the duty of the licensee and employees present on the premises to ensure that the illumination described above is maintained at all times that any patron is present on the premises. (Ord. 1219 §1, 1997)

(A) Any adult cabaret or adult theater shall have one or more separate areas designated in the diagram submitted as part of the application as a stage for the licensee or employees to perform as entertainers. Entertainers shall perform only upon the stage. The stage shall be fixed and immovable. No seating for the audience shall be permitted within three feet of the edge of the stage. No members of the audience shall be permitted upon the stage or within three feet of the edge of the stage.

(B) It shall be unlawful for the licensee or for any employee to violate any of the requirements of this section or to knowingly permit any patron to violate the requirements of this section. (Ord. 1219 §1, 1997)

(A) No licensee or employee mingling with the patrons, or serving food or drinks, shall be unclothed or in such attire, costume, or clothing so as to expose to view any specified anatomical area.

(B) No licensee or employee shall encourage or knowingly permit any person upon the premises to touch, caress, or fondle the breasts, anus, or specified anatomical areas of any person.

(C) No licensee or employee shall violate the requirements of section 5-36-110 of this chapter.

(D) It shall be unlawful for any licensee or employee to knowingly permit a patron to violate any of the requirements of this section.

(E) No licensee may display materials depicting specified anatomical areas or specified sexual activities in storefront windows or any place where such may be viewed by any person outside the licensed premises. (Ord. 1219 §1, 1997)

(A) It shall be unlawful for any employee of a sexually oriented business to receive tips from patrons except as set forth in subsection (C) of this section.

(B) A licensee that desires to provide for tips from its patrons shall establish one or more boxes or other containers to receive tips. All tips for such employees shall be placed by the patron of the sexually oriented business into the tip box.

(C) A sexually oriented business that provides tip boxes for its patrons as provided in this section shall post one or more signs to be conspicuously visible to the patrons on the premises in letters at least one inch high to read as follows: "all tips are to be placed in tip box and not handed directly to the entertainer. Any physical contact between the patron and the entertainer is strictly prohibited." (Ord. 1219 §1, 1997)

An adult motel that, in addition to the renting of private rooms, operates a sexually oriented business as otherwise defined in this chapter shall comply with all of the requirements set forth in this chapter pertaining to that business. (Ord. 1219 §1, 1997)

The provisions of this chapter do not apply to:

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

(B) Businesses located in a structure 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 where, in order to participate in a class a student must enroll at least three days in advance of the class; and where no more than one nude model is on the premises at any one time. (Ord. 1219 §1, 1997)

Any person who operates or causes to be operated a sexually oriented business without a license is subject to suit for injunction as well as criminal prosecution. (Ord. 1219 §1, 1997)

(A) The following application fees shall be paid to the city clerk at the time the application is submitted:

(B) The fees enumerated above shall be paid to the city to help defray actual and necessary expenses incurred by the city in conducting the processing, investigations, publishing, and posting requirements, and public hearing related to the application. (Ord. 1219 §1, 1997)

Any person who violates any provision of this chapter may, in addition to any civil remedy available to the city, be punished as provided in chapter 1-12, B.M.C. Each day of unlawful operation under this chapter constitutes a separate violation. (Ord. 1219 §1, 1997)