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HomeMy WebLinkAboutORD-2016-017 Ordinance adopting Amendment to Chapter 8 of the OC Code of Ordinances - Sexually Oriented Businesses ORD-2016-017 PART I-GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE IV.—SEXUALLY ORIENTED BUSINESSES Secs. 8-83--8-89.-Reserved. ARTICLE IV. — SEXUALLY ORIENTED BUSINESSES Sec. 8-90. - Scope. Pursuant to the authority granted to counties by North Carolina General Statute§153A-121, §153A-134, §160A-181.1 and to protect public health, safety, and welfare the following regulatory license provisions and regulations are ordained for sexually oriented business owners, operators, managers, whether individuals or business entities; sexually oriented business practitioners and entertainers, and for the operation or carrying on of sexually oriented businesses as the term sexually oriented business is defined in Article 10 of the Orange County Code of Technical Ordinances. Sec. 8-91. -Licensing of sexuall�� oriented business operators. (a) No person or business entity shall own, operate, maintain, run, manage, or supervise a sexually oriented business unless such person shall have first applied for and received the license required by this Section. (b) Every application for the license prescribed in this Section shall be upon a form approved by the Orange County Manager and shall be filed with the Orange County Manager. As used in this Article Orange County Manager shall mean that individual appointed as such by the Orange County Board of Commissioners or that individual's designee. Every such application shall be made under oath and shall contain the following information: (1) If the applicant is: a. A person; the name of the applicant, any aliases ever used by the applicant, the age, the sex, and past military identification number of the applicant; the residence address of the applicant and the residence addresses of the applicant for the ten years preceding the date of the application. b. A partnership, corporation, association, or any other business entity; the name of the partnership, corporation, association, or other entity, the name of each individual with an ownership or beneficial interest in the entity,the state of incorporation (if applicable), principal place of business, and the name, state of incorporation, and principal place of business of any and all associated business entities or predecessor in interest business entities. (2) The address of the premises where the sexually oriented business shall be located; Page 1 of 8 Orange County, North Carolina, Code of Ordinances PART I-GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE IV.—SEXUALLY ORIENTED BUSINESSES (3) A complete statement of all convictions of any person whose name is required to be given in subsections 8-91(a)or 8-91(b). The statement shall list convictions for all crimes including but not limited to any crime involving sexual misconduct and offenses pursuant to G.S. §§ 14-177through and including 14-202.6, §§ 14-203 through and including 14-208, and §§ 14-208.5 through and including 14-208.45; (4) A complete statement of any revocation, by any governmental unit, of any license and the existence of any license to operate a sexually oriented business or to engage in sexually oriented businesses, trades, or professions held or formerly held by any person whose name is required to be given in subsection 8-91(b)(1); (5) The name and address and license information of any sexually oriented business or other entity owned or operated by any person whose name is required to be given in subsection 8- 91(b)(1). (c) In addition to the application required in subsection 8-91(b)the applicant shall submit, at the applicant's cost, a certified criminal background check conducted by the Clerk of Superior Court covering the immediately preceding five (5)year period for all locations in which the applicant has temporarily or permanently resided or operated any sexually oriented business. (d) The application shall be approved if the County Manager determines that: (1) The application contains no misstatement of fact; (2) The applicant, or any person having any legal or beneficial ownership interest in the applicant, has not been convicted, for the five-year period preceding the date of the application, of any crime listed in subsection 8-91(b)(3); (3) The applicant or any person having a legal or beneficial interest in the applicant has not, for the three-year period preceding the application, had a previously issued license for engaging in the business, trade, or profession regulated herein revoked. (e) Upon approval of the application by the County Manager, and upon receipt of a license fee set from time to time, the collector of revenue shall issue a license to the applicant. License approval shall lapse if the license fee prescribed by this section is not received by the collector of revenue within 60 days of the date the application is approved. Page 2 of 8 Orange County, North Carolina, Code of Ordinances PART I -GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE IV.—SEXUALLY ORIENTED BUSINESSES (f) A license issued pursuant to this section shall be revoked by action of the County Manager upon the County Manager's determination that: (1) The licensee has violated any provision of this Article; or (2) The licensee, or any agent of the licensee, employs or permits to be on the premises of the applicant's sexually oriented business any person practicing the business or profession who has not been issued a license required by Section 8-92 or whose license under Section 8-92 has been revoked; or (3) The licensee, or the legal or beneficial owner of any interest in the licensee, is, after the license under this section is issued, convicted of any crime listed in subsection 8-91(b)(3); or (4) Any employee of the licensee is, after the license under this section is issued, convicted of any crime listed in subsection 8-91(b)(3); or (5) The licensee violates any zoning, building, or fire prevention ordinance and fails to abate such violation within the time ordered to do so; or (6) Subject to 8-97, the licensee knowingly allows any individual to work upon or patronize the premises who is at the time of such employment or patronization under eighteen (18) years of age; or (7) The licensee ceases for thirty (30) consecutive days operating a sexually oriented business at the location required to be stated in the application for license pursuant to subsection 8-91(b)(2). Sec. 8-92. -Licensing of Practitioners or Entertainers. (a) No person shall engage in the business or profession of sexually oriented business practice or entertainment whether as employee, contractor, or subcontractor unless such person shall have first applied for and received the license provided by this section.A license issued pursuant to this section is a regulatory license issued to the applicant only and is not transferable. (b) The application for the license required by this section shall be upon a form approved by the County Manager and shall be filed with the County Manager. Such application shall be given under oath and shall contain the following information: (1) The name of the applicant, any aliases ever used by the applicant, the age,the sex, and past military identification number of the applicant, the residence address of the applicant, and the county of residence of the applicant for the preceding three (3)years; Orange County, North Carolina, Code of Ordinances Page 3 of 8 PART I-GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE IV.—SEXUALLY ORIENTED BUSINESSES (2) A complete statement of any prior employment in any sexually oriented business; (3) A complete statement of all convictions of the applicant for any crime listed or referenced in subsection 8-91(b)(3); (4) A complete statement of any revocation of any license granted by any governmental unit to the applicant to engage in any business related to a sexually oriented businesses. (c) The applicant shall submit, as part of the application required in subsection 8-92(b), two recent photographs of the applicant's head and shoulders, of a size and quality prescribed by the County Manager. The applicant shall additionally submit, at his or her cost, a certified criminal background check conducted by the Clerk of Superior Court covering the immediately preceding five (5) year period for all locations in which the applicant has temporarily or permanently resided or worked as an employee or contractor with a sexually oriented business as part of the application required in subsection 8-92(b). (d) An application in proper form shall be submitted to the County Manager together with all reports, documents, photographs, and records required by this section. The County Manager shall conduct an investigation of the applicant as provided herein. The application shall be approved if the County Manager determines: (1) That the applicant is at least 18 years of age; (2) The application contains no misstatement of fact; (3) The applicant has not been convicted, for the five-year period preceding the date of the application, of any crime listed in subsection 8-91(b)(3); (4) The applicant has not, for the three-year period preceding the application, had a previously issued license for engaging in the business of any sexually oriented business revoked; (5) The applicant has not been previously convicted of any violation of any provision of this article; and (e) Upon approval of the application by the County Manager, and upon receipt of a license fee and any other fees as those fees are set from time to time, subject, however, to the provisions of Section 8-99, the collector of revenue shall issue a license to the applicant. License approval shall lapse if the license fee Orange County, North Carolina, Code of Ordinances Page 4 of 8 PART I-GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE IV.—SEXUALLY ORIENTED BUSINESSES prescribed by this section is not received by the collector of revenue within sixty (60) days of the date the application is approved. (f) A license issued pursuant to this section shall be revoked by action of the County Manager if the County Manager determines that: (1) The licensee has violated any provision of this Article; (2) The licensee is, after the license under this section is issued, convicted of any crime listed in subsection 8-91(b)(3); or (3) The licensee engaged in fraudulent, false, misleading or deceptive advertising to describe, promote, or advertise any type of business activity or service prohibited by this Article or is not defined in this Article. Sec. 8-93. -Employer to use only licensed employees. No person licensed under Section 8-91 of this Article shall allow or permit any person to engage in any form of entertainment upon the premises operated by the licensee unless the person is licensed under Section 8- 92 of this Article. Sec. 8-94. - Posting of license. Every person or entity required to be licensed by this Article shall cause such license to be posted upon the premises of any sexually oriented business at which the person is engaged in entertainment,work, supervisory, or management activities. If the license cannot be posted, then the person or entity's representative shall have the license in his or her actual possession at all times they are on the premises. Sec.8-95. - Notice and hearing and Appeal. (a) Before the County Manager revokes a license issued pursuant to this Article, or before the Sheriff or Board of County Commissioners consider an appeal of this Article from a decision of the County Manager denying an application for or revoking a license, the County Manager, the Sheriff, or the Board of County Commissioners, as the case may be, shall cause a written notice to be sent by certified mail, return receipt requested, to the licensee affected or applicant affected, at the address stated in the license or application. This notice shall advise the affected party of a right to appear before the County Manager, Sheriff, or Board of County Commissioners, as the case may be, at a stated time and place, for the purpose of presenting Orange County, North Carolina, Code of Ordinances Page 5 of 8 PART I-GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE IV.—SEXUALLY ORIENTED BUSINESSES any evidence relevant to such revocation, denial or appeal, and for the purpose of hearing all evidence submitted and examining or cross-examining any person providing such evidence. (b) Any person whose application for a license pursuant to this Article is denied or license revoked by the County Manager may appeal such decisions to the Sheriff for denials or revocations pursuant to 8-91(b), 8-91(f)(4), 8-92(b), or 8-92(f)(2) . Appeals for denials or revocations pursuant to any other section of this Article shall be made to the Board of County Commissioners. An appeal is taken by filing written notice of such appeal with the Sheriff or Board of County Commissioners, as the case may be,within ten (10) calendar days following the date of the decision. The Sheriff or Board of County Commissioners, as the case may be, shall set the appeal for hearing in the manner provided by this Section 8-95. The Sheriff or Board of County Commissioners may affirm, modify, or reverse the County Manager's decision. Sec.8-96. - Hours of operation. (a) No person licensed pursuant to Section 8-91 above shall operate a sexually oriented business before 10:00 a.m. or after 12:00 a.m., prevailing time. (b) No person licensed under Section 8-92 of this Article shall work or perform upon the premises of any sexually oriented business before 10:00 a.m. or after 12:00 a.m., prevailing time. (c) No person in charge of operating or managing a sexually oriented business shall allow, permit, or condone any activities, work, or entertainment before 10:00 a.m. or after 12:00 a.m., prevailing time. Sec. 8-97. -Patronage of sexually oriented businesses by minors; employment of minors. (a) No person licensed pursuant to this Article shall allow, permit, or admit for patronage upon the premises of any sexually oriented business that serves alcohol, or allows alcohol to be possessed and/or consumed on the premises, any person under the age of twenty-one(21) years. (b) No person licensed pursuant to this Article shall allow, permit, or admit for patronage upon the premises of any sexually oriented business that does not serve alcohol, or allow alcohol to be possessed and/or consumed on the premises, any person under the age of eighteen (18) years. (c) No person licensed pursuant to this Article shall employ or contract for the services of any person under the age of eighteen (18) years in the operation of a sexually oriented business. Orange County, North Carolina, Code of Ordinances Page 6 of 8 PART I-GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE IV.—SEXUALLY ORIENTED BUSINESSES Sec. 8-98.—Illegal activity. It shall be unlawful for any licensee under any section of this Article to engage in any activity that would be in violation of any crime referenced in subsection 8-91(b)(3) on the premises of a sexually oriented business. Sec. 8-99.—Annual License. (a) The licenses required under this Article are annual regulatory licenses. The annual license fee pursuant to Sections 8-91 and 8-92 shall be as determined annually by the Board of County Commissioners in the Commissioner Approved Fee Schedule. (b) Fees for the licenses shall be due and payable in the same manner as prescribed for other license fees of Orange County and may be collected in any manner authorized by law. Sec. 8-100. —Remedies. (a) Violation of this Article is a misdemeanor punishable as prescribed in G.S. § 14-4. (b) Injunctive Relief: (1) Whenever the County Manager has reasonable cause to believe that any person is violating or threatening to violate this Article or any rule or order adopted or issued pursuant to this Article, or any term, condition, or provision of a license issued pursuant to this Article, the County Manager may either before or after the institution of any other action or proceeding authorized by this Article, institute a civil action in the name of Orange County for injunctive relief to restrain the violation or threatened violation. (2) Upon determination by a court that an alleged violation is occurring or is threatened, it shall enter such orders or judgments as are necessary to abate the violation or to prevent the threatened violation. The institution of an action for injunctive relief under this section shall not relieve any party to such proceedings from any civil or criminal penalty prescribed for violation of this Article. Sec. 8-101. -Severability. If any provision of this Article is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such provision shall be deemed a separate, independent provision and such holding shall not affect the validity of any other provision hereof, and to that end, the provisions of this Article are hereby declared to be severable. Orange County, North Carolina, Code of Ordinances Page 7 of 8 PART I-GENERAL ORDINANCES Chapter 8-BUSINESSES ARTICLE IV.—SEXUALLY ORIENTED BUSINESSES Sec. 8-102. -Effective date. This Article shall be effective when adopted. Orange County, North Carolina, Code of Ordinances Page 8 of 8