[HISTORY: Adopted by the City Council of the City of West Haven 9-9-1996 by Ord. No. 360. Amendments noted where applicable.]
There are or may be adult-oriented establishments located in the City of West Haven ("city") which will require special supervision from the city's public safety agencies in order to protect and preserve the health, safety and welfare of the patrons of such establishments, as well as the health, safety and welfare of the city's citizens. This is so because such businesses may and do generate secondary effects which are detrimental to neighborhoods.
Statistics and studies performed by a substantial number of cities and towns in the United States indicate that:
Large numbers of persons frequent such adult-oriented establishments, especially those which provide closed booths, cubicles, studios and rooms for private viewing of so-called "adult" motion pictures and/or video tapes and/or live entertainment.
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.
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.
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 and 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.
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.
The continued unregulated operation of adult-oriented establishments, including without limitation those specifically cited at Subsection A of this chapter, is and would be detrimental to the general welfare, health and safety of the citizens of the city.
The Constitution and laws of the State of Connecticut grant to the city powers, and in particular police power, to enact reasonable legislation and measures to regulate and supervise adult-oriented establishments as hereinafter defined in order to protect the public health, safety and welfare.
It is not the intent of the City Council, in enacting this chapter, 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 to impose any additional limitations or restrictions on the contents of any communicative materials, including sexually oriented films, video tapes, books and/or other materials. Further, by enacting this chapter, the City Council 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.
For the purpose of this chapter, the words and phrases used herein shall have the following meanings, unless otherwise clearly indicated by the context:
- ADULT-ORIENTED ESTABLISHMENT
- Includes, without limitation, adult media outlet, adult motion-picture theaters, adult mini-motion-picture theaters, adult newsracks and adult retail establishments 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 any premises wherein an entertainer 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 used as such, whether advertised or represented as an adult entertainment studio, rap studio, exotic dance studio, encounter studio, sensitivity studio, modeling studio or any other term of like import.
- ADULT ENTERTAINMENT
- Any exhibition of any adult-oriented motion pictures, live performance, display or dance of any type, which as 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 are offered customers.
- ADULT MEDIA OUTLET
- A business engaging in the barter, rental or sale of items consisting of books, magazines, periodicals, other printed matter, pictures, slides, records, audio tapes, videotapes, compact discs, motion pictures, films or other media, if such business is open to the public, patrons or members, or if a substantial or significant portion of such items are distinguished or characterized by an emphasis on the depiction or description of specified sexual activities or specified anatomical areas. For the purposes of this definition, factors indicating that a substantial or significant portion of such a business is devoted to the sale or rental of such items include without limitation any one or more of the following criteria:
- A. Fifty percent or more of all inventory consists of such items at any time.
- B. Fifty percent or more of the merchandise displayed for sale consists of such items at any time;
- C. Fifty percent or more of the stock in trade consists of such items at any time.
- D. Fifty percent or more of the floor area of the business (not including storerooms, stock areas, bathrooms, basements or any portion of the business not open to the public) is devoted to such items at any time.
- E. Fifty percent or more of the sales, measured in dollars over any consecutive ninety-day period, is derived from such items.
- F. Fifty percent or more of the number of sales transactions, measured over any consecutive ninety-day period, is of such items.
- G. Fifty percent or more of the dollar value of all merchandise displayed at any time is attributable to such items.
- ADULT MOTION-PICTURE THEATER
- An enclosed building with a capacity of 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 therein.
- ADULT MINI-MOTION-PICTURE THEATER
- An enclosed building with a capacity of less than 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 therein.
- ADULT NEWSRACK
- Any coin- or card-operated device that offers for sale by dispensing printed material which is distinguished or characterized by its emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.
- ADULT RETAIL ESTABLISHMENT
- A business which offers for sale or rent instruments, devices, gifts or paraphernalia which are designed or marketed for use in connection with specified sexual activities, clothing that graphically depicts specified anatomical areas or any of the materials sold or rented in an adult media outlet as defined above, if a substantial or significant portion of such items are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas. For purposes of this definition, a substantial or significant portion of a business shall be determined by reference to the factors, without limitation, set forth in the definition of "adult media outlet." In determining whether an item is designed or marketed for use in connection with specified sexual activities, the following guidelines may be considered:
- A. Expert testimony as to the principal use of the item.
- B. Evidence concerning the total business of a person or business establishment and the type of merchandise involved in the business.
- C. National and local advertising concerning the use of the item.
- D. Evidence of advertising concerning the nature of the business establishment.
- E. Instructions, graphics or other material contained on the item itself or on the packaging materials for the item.
- F. The physical or structural characteristics of the item.
- G. The manner in which the item is displayed, including its proximity to other regulated merchandise or signature relating to items in a display area.
- CHIEF OF POLICE
- The Chief of Police of the city or his designated agent.
- The City Council of the City of West Haven, Connecticut.
- 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.
- 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 as an independent contractor.
- An employee of the City Police Department, Health Department, Fire Department, including the Fire Marshal, Building Department, the Zoning Enforcement Officer and/or any other city employee designated by the Chief of Police, who shall hereby be 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.
- A person under the age of 18 years.
- Any person or any proprietor, shareholder, general partner or limited partner who holds 25% or more of the shares or partnership interest of any business which is operating, conducting, owning or maintaining an adult-oriented establishment.
- SEXUAL ACTIVITY
- Not intended to include any medical publications or films or bona fide educational publication or films, nor does it include any art or photography publications which denote at least 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 seminude persons in connection with the dissemination of the news. Nor does this definition apply to publications or films which describe and report different cultures and which, from time to time, publish or show photographs or depictions of nude or semi-nude persons when describing cultures in which nudity or seminudity is indigenous to the population.
- SPECIFIED SEXUAL ACTIVITIES
- Includes any of the following:
- TRANSFER OF OWNERSHIP OR CONTROL OF AN ADULT-ORIENTED ESTABLISHMENT
- Includes any of the following:
- A. The sale, lease or sublease of the business;
- B. The transfer of securities which constitute 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 ownership or control.
Responsibilities of the operator.
Every act or omission by an employee constituting a violation of the provisions of this chapter shall be deemed the act or omission of the operator 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.
An operator of an adult-oriented establishment shall be responsible for the conduct of all employees while on the premises of such establishment, 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 chapter.
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.
Except as hereinafter provided for preexisting facilities, every adult-oriented establishment doing business in the city on or after January 1, 1996, 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, and visibility into such booths, cubicles, rooms or stalls shall not be blocked or obscured by doors, curtains, partitions, drapes or any other obstruction whatsoever. On the effective date of this chapter, it shall be unlawful to install enclosed booths, cubicles, rooms or stalls within adult-oriented establishments for the purpose of providing secluded viewing of adult-oriented motion pictures or other types of adult-oriented entertainment. However, preexisting establishments with enclosed booths on the effective date shall be subject to the following regulations, and no person shall operate an establishment with booths unless each of the following administrative requirements is met:
A light level of no less than two footcandles at floor level is maintained in every portion of said establishment.
A minimum of one toilet and wash basin shall be provided for the patrons in every such establishment. Each wash basin shall be provided with soap or detergent and sanitary towels placed in permanently installed dispensers. A trash receptacle shall be provided in each toilet room.
In toilet rooms, a waterproof floor covering shall be provided which extends up the walls at least six inches and shall be covered at the floor-wall juncture with at least a three-eighths-inch radius. Walls of toilet rooms shall be smooth, waterproof and kept in good repair.
All walls, ceilings, floors, booths and all other physical facilities shall be in good repair and maintained in a clean and sanitary condition. Toilet rooms shall be thoroughly cleaned at least once each day the business is in operation.
All establishments shall be so equipped, maintained and operated as to effectively control the entrance, harborage and breeding of vermin, including flies. When flies or other vermin are present, effective control measures shall be instituted for their control or elimination.
All walkways, aisles and hallways shall be maintained free of any obstruction such as a door, curtain, panel, board, slat, ribbon, cord, rope, chain or other device unless the area is out of service prior to or while being cleaned or repaired, in which case a sign shall indicate it is closed to all customers or patrons.
A sign setting forth the following information shall be maintained in a conspicuous location in each booth: "NOTICE: It is unlawful for this booth to be occupied by more than one person at any one time or for any person to operate this device unless the door is closed and locked." All such signs shall be at least six inches by eight inches in size and be printed with dark ink upon a light contrasting background with letters at least 1/4 inch in height.
There shall be a system of monitoring all areas of such booths either by direct viewing or by a system of video monitoring which allows viewing of each monitored area at least every 60 seconds.
There shall not be any aperture which permits contact or communication between occupants of any two or more booths. If an administrative inspection by any city inspector reveals any such aperture in a booth, the license for such establishment shall be immediately subject to suspension or revocation.
There shall be a light or lighted sign on the exterior of each booth which indicates whether a showing device is in use.
Booths shall be fully enclosed and shall have doors to ensure the privacy of the individual occupant therein, except that such doors shall extend downward no further than 12 inches above the floor. All such booths shall have an interlock mechanism which prevents activation of a showing device unless the booth door is closed and locked.
Except as provided above with respect to preexisting facilities, on or after January 1, 1996, 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 footcandle as measured at the floor level. It shall be the duty of the operator and his or her employees to ensure that the illumination described above is maintained at all times that any patron is present in the premises.
The operator shall ensure compliance of the adult-oriented establishment and its patrons with the provisions of this chapter.
Inspections. An operator or an applicant for a license to operate an adult-oriented establishment shall permit representatives of the Police Department, Health Department, Fire Department, Building Department and/or any other inspector, as defined in § 64-2 of this chapter, to inspect the premises of an adult-oriented business for the purpose of ensuring compliance with the law, at all reasonable times.
On or before January 1, 1996, the operator of each adult-oriented establishment shall be responsible for and shall acquire a license from the city in the following manner:
The operators, as defined in § 64-2 above, of each adult-oriented establishment shall submit an application to the Chief of Police, upon a form to be provided by the Chief of Police. Within 45 days after receipt of a completed application for an adult-oriented business license, the Chief of Police shall mail to the applicant a license or a notice of intent to deny. If he fails to do so, the license shall be deemed granted. The application shall be deemed complete when the Chief of Police has received the fees, all information required in § 64-5 below, a photograph and fingerprints of the applicant and, in the case of a corporation or other business organization, photographs and fingerprints of all persons for whom information is required under § 64-5 of this chapter.
The premises must be inspected by the City Health Department, Fire Department, Building Department and Zoning Enforcement Officer within 30 days of receipt of the complete application. If the premises are in compliance with state and local health, fire and building codes and zoning regulations, a license shall be issued within 45 days of receipt of the complete application, unless the applicant is deemed unqualified.
An applicant shall be unqualified if one or more of the following is true:
An applicant is under 18 years of age.
An applicant is overdue in payment to the city of taxes, fees, fines or penalties assessed against him or imposed upon him in relation to an adult-oriented business.
An applicant has failed to provide information required by § 64-5 of this chapter or has falsely answered a question or request for information on the application form.
An applicant has violated a provision of this chapter within two years immediately preceding the application.
The premises to be used for the adult-oriented business are found to violate City Health Department, Fire Department and Building Department requirements, laws, ordinances or regulations within 30 days of the filing of the application.
An applicant is in violation of the City of West Haven Zoning Regulations.
The license fee required by § 64-6 of this chapter has not been paid at the time the application was filed with the Chief of Police.
An applicant has been employed in an adult-oriented establishment in a managerial capacity within the preceding 24 months and knowingly:
Permitted alcoholic liquor or cereal malt beverages to be illegally brought or consumed upon the premises;
Permitted the illegal sale, distribution, delivery or consumption of any controlled substance or illegal drug or narcotic on the premises;
Permitted any person under the age of 18 to be in or upon the premises of an adult entertainment business; or
Permitted any act of prostitution or patronizing prostitution as defined under state law on the premises.
An applicant has been convicted of or has plead nolo contendere to a felony within five years immediately preceding the application or has been convicted of or plead nolo contendere within two years immediately preceding the application, where such misdemeanor involved sexual assaults or batteries, prostitution, indecent exposure, sexual abuse of a child, child pornography or sale or distribution of controlled substances or illegal drugs or narcotics.
If an applicant is deemed unqualified, said rejection shall be in writing and shall specifically state the evidence presented and reason for rejection and shall be sent to the applicant by registered mail, as further provided in § 64-12 of this chapter.
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 business. The license shall be posted in a conspicuous place at or near the entrance to the adult-oriented business so that it may be easily read at any time.
The application shall include the information called for in Subsection A(1) through (9) below. If the applicant is an enterprise, it shall designate an officer or partner as applicant. In such case, in addition to the information in Subsection A(1) through (9) below, the application shall state the date of formation of the organization and the information called for in Subsection A(2) through (6) of this section with respect to each officer, director, general partner and all other persons with authority to participate directly and regularly in management of the business, but such information need not be provided with respect to attorneys, accountants and other persons whose primary function is to provide professional assistance to the licensee.
The name, business location, business mailing address and phone number of the proposed adult-oriented business establishment.
The full true name and any other names, aliases or stage names used in the preceding five years.
Current residential mailing address and telephone number.
Written proof of age, in the form of a birth certificate, current driver's license with picture or other picture identification document issued by a governmental agency.
The issuing jurisdiction and the effective dates of any license or permit relating to an adult-oriented business or adult service, whether any such license or permit has been revoked or suspended and, if so, the reason or reasons therefor.
All criminal charges, complaints or indictments in the preceding five years which resulted in a conviction or a plea of guilty or nolo contendere.
The name and address of the statutory agent or other agent authorized to receive service of process.
The name(s) of the adult-oriented business manager(s) who will have actual supervisory authority over the operations of the business.
An accurate, to scale but not necessarily professionally drawn, floor plan of the business premises clearly indicating the location of one or more manager's stations.
A license fee of $750 shall be submitted with the application for a license. If the application is denied, 1/2 of the fee shall be returned.
Each license shall expire one year from the date of issuance and may be renewed annually by making application as provided in § 64-4 of this chapter. Application for renewal shall be made at least 30 days before the expiration date to allow city officials to review the application in a timely manner prior to expiration.
An annual license renewal fee of $500 shall be submitted with the application for renewal. If the application for renewal is denied, 1/2 of the total fees collected shall be returned.
No adult-oriented establishment shall operate if its license expires by lapse of time.
The Chief of Police shall suspend a license for a period not to exceed 30 days if he determines that an operator or an employee of an operator has violated any part of this chapter or violated any state statute regarding the subject establishment.
The Chief of Police shall revoke a license if a cause of suspension in § 64-8 occurs and the license has been suspended within the preceding 12 months.
The Chief of Police shall revoke a license if he determines that:
An operator gave false or misleading information in the material submitted during the application process;
An operator or an employee of an operator has illegally or negligently permitted possession or use or sale of controlled substances on the premises of the adult-oriented business;
An operator or an employee of an operator has knowingly or negligently allowed or promoted prostitution on the premises of the adult-oriented-business;
An operator or an employee of an operator has knowingly operated the adult-oriented establishment during a period of time when the operator's license was suspended;
An operator or an employee of an operator has knowingly allowed or, as a result of his or her negligent failure to supervise, has allowed any act of sexual intercourse, sodomy, oral copulation, masturbation or sexual contact to occur in or on the premises of the adult-oriented establishment; or
Any operator whose license is revoked shall not be eligible to receive a license for one year from the date of revocation.
Any person, partnership or corporation who or which is found to have violated this chapter shall be fined a definite sum not exceeding $90 for each such violation.
Each violation of this chapter shall be considered a separate offense, and any violation continuing more than one hour of time shall be considered a separate offense for each hour of violation.
An operator shall not transfer his or her license to another, nor shall an operator operate an adult-oriented establishment under the authority of a license at any place other than the address designated in the application.
The transfer of a license or any interest in a license shall automatically and immediately revoke the license.
If the Chief of Police denies the issuance of a license, or suspends or revokes a license, he shall, within 10 days of his decision, send to the applicant or operator at the address listed on the application, by certified mail, return receipt requested, written notice of his decision and further shall specifically state the evidence presented, the reason for the decision and the right to an appeal. The aggrieved party may appeal the decision to the Board of Police Commissioners within 30 days of receipt of the notice. The Board must hear the appeal and render a decision within 45 days of receipt of the appeal. The aggrieved party may file an appeal from the Board of Police Commissioners directly to the Superior Court. Nothing in this section shall prevent the city from proceeding with an injunction action pursuant to § 64-13 hereof.
A person who operates or causes to be operated an adult-oriented business without a valid license is subject to a suit for injunction.