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Friday, September 24, 2010

Adult Entertainment Ordinance: The Full Text

IN THE YEAR TWO THOUSAND TEN AN ORDINANCE REGULATING ADULT ENTERTAINMENT IN THE CITY OF LYNN

WHEREAS, adult entertainment and sexually orientated businesses require special supervision from public safety agencies of the City in order to protect the health, safety and welfare of the patrons of such businesses and the citizens of the City; and
WHEREAS, adult entertainment and sexually orientated businesses are known to often be the location of unlawful sexual activities; and
WHEREAS, the concern over sexually transmitted diseases is a legitimate health concern of the City which demands reasonable regulation of adult entertainment and sexually orientated businesses in order to protect the health and well being of the citizens; and
WHEREAS, adult entertainment and sexually orientated businesses, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding community, causing increased crime and the downgrading of property values; and
WHEREAS, it is recognized that adult entertainment and sexually orientated businesses, due to their nature have serious objectionable operational characteristics, particularly when they are located in close proximity to each other, thereby contributing to urban blight and the downgrading of the quality of life in the community; and
WHEREAS, the City Council desires to minimize and control these adverse effects and thereby protect the health, safety, and welfare of the citizens of the City; protect such citizens from increased crime; preserve the quality of life of citizens and businesses in the City; preserve the property values and character of surrounding neighborhoods; and deter the spread of urban blight; and
WHEREAS, it is not the intent of this Ordinance to suppress any free speech activities protected by the First Amendment, but to enact a content-neutral ordinance which addresses the secondary effects of adult entertainment and sexually orientated businesses and which is necessary to protect the health, safety, and welfare of the citizens of the City of Lynn, and surrounding cities and towns.
WHEREAS, it is the specific desire not to allow Adult Entertainment, for the foregoing reasons and more, in the following zoning districts: Business, Business Class 3, Residential, Central Business, Light Industrial, Single Residential R-1, Commercial Residential R-2, Apt. House R-3, Cl 1, Apt. House R-4, Class 2, Apt. House R-5 High Rise, Waterfront WF1, WF1A, WF2, WF3, Residential Re-use Overlay Dt, Washington Street Overlay Corridor, Sagamore Hill Overlay Dt and the Tidelands Overlay Dt.
NOW THEREFORE, pursuant to the authority granted by the Constitution of the Legislature of the Commonwealth of Massachusetts, be it enacted by the Lynn City Council:

SECTION 1.    Purpose and Findings
1. Purpose: it is the purpose of this Ordinance to regulate adult entertainment and sexually orientated businesses in order to promote the health, safety and general welfare of the citizens of Lynn and surrounding communities. The provisions of this Ordinance have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communicative materials, including sexually orientated materials. It is neither the intent nor the effect of this Ordinance to restrict or deny access by adults to sexually orientated materials protected by the First Amendment.
2. Findings: based on evidence concerning the adverse secondary effects of adult uses on the community presented in hearings and reports made available to the City Council, and on findings incorporated in the cases of City Council of Erie v. Pap's A.M., 529 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of Renton v. Paytime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini Theatres, U.S. 50 (1976); and other studies in other communities including, but not limited to Springfield, Phoenix, Arizona; Minneapolis, Minnesota; St. Paul, Minnesota; Houston, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; Beaumont, Texas; Dallas, Texas; Newport News, Virginia; Bellevue, Washington; New York, New York; and St. Croix County, Wisconsin the City Council finds:
a. Adult entertainment and sexually orientated businesses lend themselves to ancillary, unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments.
b. Employees of adult entertainment and sexually orientated businesses engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.
c. Sexual acts occur at adult entertainment and sexually oriented businesses.
d. Adult entertainment and sexually orientated businesses encourage illicit sexual acts which create unhealthy conditions.
e. At least 50 communicable diseases may be spread by activities occurring in adult entertainment and sexually orientated businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus (HIV-AIDS), genital herpes, hepatitis B, salmonella infections and shingella infections.
f. Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS (Acquired Immunodeficiency Syndrome) caused by the human immunodeficiency virus (HIV) in the United States.
g. The findings noted in subsections a through f raise substantial governmental concerns.
h. Adult entertainment and sexually orientated businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns and, where necessary, should be banned or eliminated where they are or have been causing effects which are harmful to the health, safety and welfare of the citizens of Lynn and the surrounding communities.
i. The general welfare, health and safety of the citizens of the City will be promoted by the enactment of this Ordinance.

Section 2. Definitions.

Adult Bookstore means an establishment having as a substantial or significant portion of its stock in trade, books, magazines, and other matter which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in M.G.L., Chapter 272, Section 31. For the purpose of this ordinance, the term "substantial or significant portion" means that more than 10 percent of the total floor area or stock is devoted to the items listed above.
Adult Paraphernalia Store means an establishment having as a substantial or significant portion of its stock devices, objects, tools, or toys which are distinguished or characterized by their association with sexual activity, including sexual conduct or sexual excitement as defined in M.G.L., Chapter 272, Section 31.

Adult Video Store means an establishment having as a substantial or significant portion of its stock in trade, videos, movies, or other film material which are distinguished or characterized by their emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in M.G.L., Chapter 272, Section 31.

Adult Motion Picture Theater means an enclosed building used for presenting material distinguished by an emphasis on matter depicting, describing, or relating to sexual conduct or sexual excitement as defined in M.G.L., Chapter 272, Section 31. This definition includes, but is not limited to, adult arcade, adult mini-motion picture theater, adult booth(s), adult drive-in theaters.

Adult Booth means An enclosed or partitioned area inside an adult oriented establishment which is: (I) designed or used for the viewing or listening of adult material by one (1) or more persons and (II) is accessible to any person, regardless of whether a fee is charged for access. The term "Adult Booth" includes, but is not limited to, a "peep show" booth or other booth used to view or listen to adult material (including, but not limited to, videotapes, audiotapes, films, CD-ROMs, DVDs or internet access).

Adult Dancing means Any dancing which exposes to view by patrons or spectators on the premises at any time the specified anatomical areas and/or specified sexual activities, as defined in this Ordinance.

Adult Dancing/Entertainment Establishments means An establishment, including but not limited to, a restaurant (eating and drinking establishments), lounge, dance hall, nightclub or other such place whose business includes the offering to customers of live entertainment wherein employees, agents, servants, independent contractors or other customers perform dance routines and/or display or expose specified anatomical areas, offered as adult oriented entertainment for viewing by patrons or spectators on the premises and characterized by the emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Adult Cabaret: See "Adult Dancing/Entertainment Establishments".
Adult Motel means a motel or similar establishment with the word "adult" or otherwise that advertises the presentation of adult material, offering public accommodations for any form or consideration which provides patrons with closed circuit television transmission, internet access, films, motion pictures, video cassettes, slides, CD-ROMs, DVDs or other photographic reproductions for the primary purpose of sexual gratification or as related to specified sexual activities.

Sexual Encounter Center means an establishment whose primary or accessory business is the provision on premises where customers either congregate, associate or consort with employees, agents, servants, independent contractors or other customers who engage in specified sexual activities in the presence of such customers or who display specified anatomical areas in the presence of such customers with the intent of providing sexual stimulation or sexual gratification appealing to adult sexual interests.

Massage Parlor means an establishment providing massages by persons other than a licensed health care professional, including activities that rub, stroke, knead or tap the body with the hand or an instrument or both for the purpose of or engaging in sexual gratification or as related to specified sexual activities. This definition also includes those activities listed within "Sexual Encounter Center". However, massages as used in this ordinance shall not apply to the activity of any person who is registered or licensed by the United States Government or any agency thereof or by the Commonwealth of Massachusetts or any agency thereof, while such person so registered or licensed is performing the services for which the registration or license was issued and during the period of time said registration or license is in effect.

Specified Anatomical Areas means an area including, but not limited too, less than completely and opaquely covered: (I) human genitals or pubic region; (II) the cleavage of the human buttock; (III) any portion of the human female breasts below a horizontal line across the top of the areola at its highest point, the entire lower half of the human female breast, not including cleavage of the human female breast exhibited by a dress, blouse, shirt, leotard, bathing suit or other wearing apparel provided that the areola is not exposed in whole or in part; and (IV) human male genitals in a discernable turgid state, even if completely and opaquely covered.

Specified Sexual Activities means activities including, but not limited to, human genitals in a state of sexual stimulation or arousal; acts of human masturbation, sexual intercourse or sodomy; fondling or other erotic touching of human genitals, pubic region or pubic hair, buttocks or human breast(s); flagellation or torture on the context of a sexual relationship; masochism, erotic or sexually oriented torture, beating or the infliction of pain; erotic touching, fondling or other such contact with an animal by a human being; excretory functions as part of or in connection with any of the activities listed herein.

Section 3. Permitted Districts
Adult oriented uses are permitted with a special permit from the City Council in Heavy Industrial and no other districts, subject to the following regulations:
1.     No lot occupied, or to be occupied, by an adult oriented use shall be located within a five hundred (500) foot radius from a residential zoning district or a building containing residences.
2.    No lot occupied, or to be occupied, by an adult oriented use shall be within a five hundred (500) foot radius from the grounds of a public or private school, place of worship, licensed daycare facility, public library, public park or A structure or parcel used for a senior center, nursing home or assisted living facility

3.     No lot occupied, or to be occupied, by an adult oriented use shall be located within a five hundred (500) foot radius of any other adult oriented use as defined.
4.    Adult oriented uses will not be situated within a five hundred (500) foot radius of any establishment that serves or sells alcoholic beverages that are consumed on the premises or taken out.
5.     Method of measurement of distances: The distances required by this section shall be measured from the closest property line occupied, or to be occupied, by an adult oriented use to the closest property line occupied by a protected use, zoning district or another adult oriented use. For the purpose of this ordinance, the term "protected use" includes, but is not limited to, residential zoning districts, buildings containing residences, grounds of a school, place of worship, public library or public park.
6.     Prohibition of physical contact: While on the premises of an adult oriented use, no employee, agent, servant, independent contractor or other customer shall be permitted to have physical contact with any other adult entertainment employee, other employee, patron or spectator while the employee, agent, servant, independent contractor or other customer is entertaining, dancing or otherwise involved in the display of or exhibition of specified anatomical areas or specified sexual activities.
7.     Exterior Display: No adult oriented use shall be conducted in any manner that permits the observation of any material depicting or relating to specified anatomical areas or specified sexual activities from any public or private way, parking area or adjacent properties. This provision shall apply to any display, signage, show window or opening.
8.     Sign Requirements: Sign content shall identify the name of the establishment only and shall contain no advertisement in addition to the identification of the use. Only one (1) identification sign, to be mounted on the building wall face, shall be allowed for an adult orientated use. All other signs whether on the exterior of the building or visible from the exterior of the building are prohibited. No adult oriented use shall have any flashing lights visible from the exterior of the use. Furthermore, no sign shall rotate or contain reflective or florescent elements.
9.     Non-conforming Use: Any adult oriented use in existence as of the effective date of this ordinance, which is in violation hereof, shall be deemed a non-conforming use. Such non-conforming uses shall not in any manner be enlarged, altered or rebuilt.
10.     In addition, any now existing retailer who is engaged in the sale and/or rental of books, periodicals, magazines, films, video tapes, CD-ROMs, DVDs, audiotapes or other printed or pictorial materials shall cover the front page of said books, periodicals, magazines, films, video tapes, CD-ROMs, DVDs, audiotapes or other printed or pictorial materials or shall maintain a separate viewing and sales area for the rental and/or sale of said books, periodicals, magazines, films, video tapes, CD-ROMs, DVDs, audiotapes or other printed or pictorial materials as defined by this ordinance so as to prevent minors from viewing or entering said adult entertainment area.
11.     Whoever disseminates to a minor any matter harmful to minors, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to minors, shall be in violation of this ordinance. For the purposes of this ordinance, "a minor" is a person under eighteen years of age. Matter is harmful to minors if it is obscene or if taken as a whole, it (1) describes or represents nudity, sexual conduct or sexual excitement, so as to appeal predominantly to the prurient interest of minors; (2) is patently contrary to prevailing standards of adults in the county where the offense was committed as to suitable material for such minors; and (3) lacks serious literary, artistic, political or scientific values for minors. It shall be a defense under this section that the defendant was in a parental or guardianship relationship with the minor. It shall also be a defense that the defendant was a bonafide school, museum or library, or was acting in the course of his employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.
12.    No Adult Entertainment Use Special Permit shall be issued to any person convicted of violating the provisions of M.G.L. c. 119, Sec. 63 or M.G.L. c.272, Sec. 28 registered with or required to be registered under the Sex Offender Registration Law, G.L. chapter 6, sections 178C et. seq., or its successor.

13.    All building openings, entries, and windows shall be screened in such a manner as to prevent visual access to the interior of the establishment by the public.

14.    No material described in the definitions of adult entertainment uses in this ordinance that depicts, describes or relates to nudity or sexual conduct as defined in G.L. chapter 272, section 31 shall be so located in or on the building housing such adult use which is visible to the public from the outside of the premises in which an adult use is permitted. No advertising, or other material, whether displayed in the window or affixed to the building shall be permitted which depicts, describes or relates to nudity or sexual conduct as defined in G.L. chapter 272, section 31.

15.    No adult entertainment use shall be allowed to disseminate or offer to disseminate adult matter or paraphernalia to minors or suffer minors to view displays or linger on the premises.

 16.    Adult entertainment uses shall not be open to the public between the hours of 11:30 P.M. and 9:00 A.M.

17.    At no adult entertainment use or facility of any kind shall alcoholic beverages be allowed, sold, served or suffered to be used or consumed at any time.

18.    If the adult entertainment use allows for the showing of films or videos within the premises, the booths in which the films or videos are viewed shall not be closed off by curtains, doors, or screens. All such booth openings shall be clearly seen from the center of the establishment.

SECTION 4    CRITERIA FOR SPECIAL PERMITS

1.    No special permit shall be granted for any adult entertainment establishment unless the Lynn City Council shall have made detailed findings, based upon the required submissions that:

a.     The specific site is an appropriate location for such use in accordance with the standards set forth in the foregoing.

b.     The use as developed and carried on will not adversely affect the neighboring properties or people.

c.     The use as developed and carried on will not create a nuisance or serious hazard
to vehicles or pedestrians traveling into, out of and about the premises.

d.     The use as developed shall provide adequate and appropriate facilities for its proper operation, taking into account the public health and welfare of its patrons and the surrounding environs of the property.


SECTION 5    APPLICATION

1.    In addition to the submittal requirements and review standards pertaining to administration, application and submission requirements, fees, powers, hearings and time limits, provided in this ordinance, each applicant for a special permit under this section shall submit:

a     A security plan detailing how the property will be policed so as to avoid unruly and/or illegal activities from taking place upon the applicant’s property and to deter and prevent incidents of vandalism, loitering and other associated activities upon its property.

b.     A plan to protect adjacent or neighboring properties against noise, glare, unsightliness or other objectionable features.

c.     Evidence that adequate storm-water and drainage facilities are available or will be provided to service the use; this information shall be contained on the site plan. The site plan shall also demonstrate the adequacy of water supply and sewerage disposal facilities to service the site and the proposed use.

d.     Evidence that the adult entertainment establishment will not generate excessive noise so as to create a disturbance and nuisance to adjacent or neighboring properties.

    2.    Each application for a special permit under this section shall include a site plan showing:

a.     The location, arrangement, appearance and sufficiency of off-street parking and loading. In computing the required off-street parking, the proposed adult entertainment establishment shall calculate its required parking pursuant to the category entitled, “Food Service Establishment”.

b.     The adequacy and arrangement of pedestrian traffic access and circulation, walkway structures, control of intersections with vehicular traffic and overall pedestrian convenience.

c.     The location and adequacy of fire lanes and other emergency zones, and the location of fire hydrants, where applicable.

d.     The locations, arrangement, size, design and general site compatibility of lighting and signs to be erected thereon. Any outdoor lighting used to advertise the business operated on the premises, and/or to illuminate the off-street parking areas, shall not cause a nuisance to adjacent properties.

e.     A plan detailing the adequacy, type, and arrangement of trees, shrubs and other landscaping which shall constitute a visual and/or noise buffer between the applicant’s land and the adjoining lands. Wherever possible, the maximum retention of existing vegetation shall be required.

f.        A non-refundable Special Permit application fee in the amount of $2,500.00

3.     The site plan shall be drawn to a scale of not less than forty feet to the inch, on one or more sheets, prepared by a professional engineer, and a professional land surveyor, when applicable, illustrating the information to identify location, applicant, owner and party responsible for preparing the plan.




SECTION 6    LICENSE TERM

Any special permit granted under this section shall lapse and become null and void:

    1.    If a substantial use thereof has not commenced within six months from the date of the grant thereof, including such time required to pursue or await the determination of an appeal, except for good cause; or, in the case of a permit for construction, if construction has not begun by such date, except for good cause; or,

2.     Thirty days after the date of a conviction under the provisions of G.L. c. 119, §63, or G.L. c. 272, §28 by any person having an interest in said adult entertainment establishment, unless said person divests him or herself of such interest by such date; or,

3.     Immediately whenever any person having been convicted of violating M.G.L. c. 119, §63, or G.L. c. 272, §28 shall acquire an interest in said adult entertainment establishment or registered with or required to be registered under the Sex Offender Registration Law, G.L. chapter 6, sections 178C et. seq., or its successor.

4.    A special permit to conduct an adult entertainment use shall expire after a period of two calendar years from its date of issuance and shall be eligible for renewal for successive two-year periods thereafter, provided that a written request for such renewal is made to the special permit granting authority prior to said expiration and that no objection to said renewal is made and sustained by the special permit granting authority based upon notification of adverse changes regarding the public safety factors applied at the time that the original special permit was granted.

SECTION 7    SEVERABILITY 

    If any of the provisions of this ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions of said ordinance nor the application of such other provisions, which can be given effect without the invalid provisions of application thereof, and for this purpose the provisions of this ordinance are severable.

SECTION 8.     REPEAL OF INCONSISTENT ORDINANCES 

    All ordinances or parts of ordinances inconsistent herewith are hereby repealed.

SECTION 9     EFFECTIVE DATE

    This ordinance shall take effect thirty-one (31) days after its final adoption as advertised.

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