The text
ARTICLE I. - IN GENERAL#
Sec. 5.4-1. - Nudity on premises where alcoholic beverages are offered for sale.#
(a)
It shall be unlawful for any person maintaining, owning, or operating a commercial establishment located within the Town of Hopkinton at which alcoholic beverages are consumed or are offered for sale for consumption on the premises to suffer or permit:
(1)
Any female person, while on the premises of the commercial establishment to expose to the public view the area of the female breast at or below the areola thereof.
(2)
Any female person, while on the premises of the commercial establishment to employ any devise or covering which is intended to give the appearance of or simulate such portions of the female breast as described in subsection (a)(1) above.
(3)
Any person, while on the premises of the commercial establishment, to expose to the public view his or her genitals, pubic area, anus, anal cleavage, or anal cleft.
(4)
Any person, while on the premises of the commercial establishment, to employ any devise or covering which is intended to give the appearance of or simulate the genitals, pubic area, anus, anal cleavage, or anal cleft.
(b)
It shall be unlawful for any female person, while on the premises of a commercial establishment located within the Town of Hopkinton at which alcoholic beverages are consumed or are offered for sale for consumption on the premises, to expose to the public view that area of the female breast at or below the areola thereof or to employ any devise or covering which is intended to give the appearance of or simulate such portions of the female breast as described herein.
(c)
It shall be unlawful for any person, while on the premises of a commercial establishment located within the Town of Hopkinton at which alcoholic beverages are consumed or are offered for sale for consumption on the premises, to expose to the public view his or her genitals, pubic area, anus, anal cleavage, or anal cleft, or to employ any devise or covering which is intended to give the appearance of or simulate the genitals, pubic area, anus, anal cleavage, or anal cleft.
(d)
A violation of said section by the owner or operator of a business licensed to sell alcohol beverages shall be punishable by a fine not to exceed five hundred dollars ($500.00) for the first offense and/or the suspension or revocation of said liquor license. Any subsequent violation within three (3) years after a conviction for the same or similar violation shall be punishable by a fine not to exceed one thousand dollars ($1,000.00) and/or the suspension or revocation of said liquor licenses.
(e)
A violation of this section by a person other than an owner or operator of the licenses premises shall be punishable by a fine not to exceed five hundred dollars ($500.00) for the first offense and by a fine not to exceed one thousand dollars ($1,000.00) for any subsequent violation within three (3) years after a conviction for the same or similar violation.
(f)
The invalidity of any section or sections of this section 5.4-1 shall not affect the validity of the remainder of this section
(Ch. 176, 10-3-05)
Editor's note— Ch. 176, adopted October 3, 2005, did not specifically amend the Code. Therefore, such ordinance has been added as § 5.4-1 at the editor's discretion.
Secs. 5.4-2—5.4-25. - Reserved.#
ARTICLE II. - ADULT ENTERTAINMENT BUSINESSES#
Footnotes:
--- (1) --- Editor's note— Chapter 176, adopted October 3, 2005, did not specifically amend the Code. Therefore, such ordinance has been added as §§ Art. II, 5.4-26—5.4-39 at the editor's discretion.
Sec. 5.4-26. - Adult entertainment license—Purpose and intent.#
This article creates an entertainment licensing process for the adult entertainment use. For the purpose of promoting the public health, safety, morals, and general welfare, the Hopkinton Town Council has the power, in accordance with the provisions of G.L. § 5-22-1 et seq., to license, regulate, and in certain instances, prohibit and suppress shows and performances.
It is the purpose of this article to address and mitigate the secondary effects of the adult entertainment establishments and sexually oriented businesses that are referenced and defined herein. Secondary effects have been shown to include increased crime, adverse impacts on public health, adverse impacts on the business climate of the town, adverse impacts on the value of residential and commercial properties, and adverse impacts on the quality of life in the town. All of said secondary impacts are adverse to the public health, safety, morals, and general welfare of the Town of Hopkinton and its inhabitants.
The town council, as the governing body of the Town of Hopkinton, RI, has the authority and responsibility to legislate on matters of local concern for the protection of the public health, safety and welfare. Upon further consideration, the council has determined that adult entertainment businesses, by their very nature, create and contribute to many of the direct and secondary impacts, whether or not alcoholic or cereal malt beverages are served on the premises. It is, therefore, the intent of this section to impose licensing requirements and regulations upon those business establishments and enterprises which provide adult entertainment, for the purposes of preventing the spread of disease, to promote sanitary health conditions, to prevent opportunities for criminal activity, to minimize opportunities for the involvement of minors in such activities, to preserve property values, and to promote the public morals and welfare.
The provisions of this article have neither the purpose nor the intent of imposing a limitation on the content of any communicative matter or materials, including sexually oriented matter or materials. Similarly, it is not purpose or intent of this article to restrict or deny access by adults to adult entertainment establishments or to sexually oriented matter or materials that are protected by the Constitution of the United States America or the State of Rhode Island, nor to restrict or deny rights that distributors or exhibitors of such matter or materials may have to sell, rent, distribute, or exhibit such matter or materials. Neither is it the purpose of this article to legalize the sale, rental, distribution or exhibition or obscene or other illegal matter or materials.
All licenses issued under this article must run to and be associated with a permitted use of property which is zoned properly in the Town of Hopkinton.
Further, it is the purpose of this article to conclusively state that the live performance of sex acts which are obscene or illegal are not allowable by virtue of this article.
(Ch. 176, 10-3-05)
Sec. 5.4-27. - Same—Definitions.#
As used in this article, certain words and terms are defined as follows:
Adult entertainment use. Adult entertainment establishments and sexually oriented businesses shall include: (1)
Adult bookstore. An establishment that has a substantial portion of its stock-in-trade and offers for sale, for any form of consideration, any one (1) or more of the following:
a.
Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations that are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; or
(2)
Adult cabaret. A night club, bar, restaurant, or similar establishment that regularly or occasionally features live performances that are characterized by the exposure of specified anatomical areas.
(3)
Adult motion picture theater. An establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or other similar photographic reproductions are shown, and in which a substantial portion of the total presentation time is devoted to the showing of material characterized by an emphasis on the depiction or description of specified sexual activities on specified anatomical areas.
(4)
Other adult entertainment uses. Any live exhibition, performance, display or dance of any type, including but not limited to talking, singing, reading, listening, posing, serving food or beverages, soliciting for the sale of food, beverages, products, or entertainment, pantomiming, modeling, removal of clothing, or any service offered for amusement on any premises to which the public, patrons, or members are invited or admitted, including any private club or membership organization, and including but not limited to business establishments identified as a adult arcade, escort agency, juice bar, coffee shop, victualer, nude modeling studio, sexual encounter center, massage parlor, or similar or like business establishments.
Applicant. The person listed as an applicant on the application for a license and a person applying for renewal of an existing license.
Business. Any business or use possessing or desiring to possess an adult entertainment license under this article.
Employee. Any person who works, performs, or serves in a use with an adult entertainment license, including the managers, servers, and entertainers regardless of whether or not said person is paid a salary, wage, or other compensation by the licensee.
Entertainer. Any person who provides adult entertainment within an adult entertainment use as defined in this article, whether or not a fee is charged or accepted for the entertainment.
License. An adult entertainment license of any kind issued under this article.
Licensee. A person in whose name a license under this article has been issued.
Manager. Any person, who manages, directs, administers, oversees, or is the charge of the running and operation of a use or business possessing an adult entertainment license under this article.
Owner. Any person owning directly, indirectly, or beneficially any interest or part interest, however identified, in a use or proposed use in this article.
Peep booth. A viewing room of less than one hundred fifty (150) square feet of floor space.
Person. An individual, sole proprietorship, partnership, corporation, limited liability company, association, organization, or other recognized entity, including an applicant, licensee, entertainer, server, manager, owner, or principal owner.
Premises. Any location, building or use location housing a business possessing or seeking an adult entertainment license under this article.
Principal owner. Any person owning, directly, indirectly, or beneficially: (1)
Five (5) percent or more of the corporation's corporate stock;
(2)
Five (5) percent or more of a membership interest in a limited liability company;
(3)
In the case of any other recognized entities, five (5) percent or more of the ownership interests in the entity; or
(4)
The general partner of a limited partnership, regardless of the percentage of ownership.
Server. Any person who serves food or drink at any use holding an adult entertainment license under this article.
Specified anatomical areas. This term means and include any of the following: (1)
Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areola; or
(2)
Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
Specified criminal acts. This includes sexual crimes against children, sexual abuse, rapes and sexual assaults, distribution of obscenity, pandering, prostitution, and alcohol and controlled substances violations.
Specified sexual activities. This term means and includes any of the following: (1)
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
(2)
Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
(3)
Masturbation, actual or simulated; or
(4)
Excretory functions as part of or in connection with any of the activities set forth as noted above.
Transfer of license. This term means and includes any of the following: (1)
The sale, lease or sublease of the business or use;
(2)
The transfer of securities which constitute a five (5) percent or greater interest in the business or use, whether by sale, transfer, exchange or similar means, with our without compensation therefore; or
(3)
The passing of any ownership interest over five (5) percent by operation of law or through testate or intestate succession upon death of the license holder.
(Ch. 176, 10-3-05)
Sec. 5.4-28. - Same—Application and licensing requirements.#
(a)
All adult entertainment uses operating in the town must have a valid annually renewable adult entertainment license issued by the Town of Hopkinton.
(b)
A license can be obtained through the application and licensing process described in this article.
(c)
Any valid adult entertainment use currently operating in the town upon the effective date of this article shall have sixty (60) days to file an application with the town council for a license. During the sixty (60) days and throughout the application process, the business will be allowed to operate. Once an application has been accepted by the town council, the business will be allowed to remain open until notification that a request for a license has been denied.
(d)
Any person desiring an adult entertainment license shall file with the town clerk an original and two (2) copies of a fully completed and sworn license application on the standard application form supplied by the town clerk. Completeness of the application shall be determined by the town council. Each such person and each owner and principal owner, member of limited liability company, officer, director or any person holding ten (10) percent of more of the corporate stock of a corporation, and all managers, shall be named in the application form, and each of the persons so named shall submit a complete application complying with the following:
(1)
A completed application shall contain the following information and shall be accompanied by the following documents:
a.
If the applicant is:
1.
An individual, the individual shall state his/her legal name and any aliases, date of birth, social security number, and submit satisfactory proof that he/she is twenty-one (21) years of age; or
2.
A legal entity, or other recognized entity, the applicant shall state its complete name, the date and place of its organization, evidence that it is in good standing under the laws of the state in which it is organized, and if it is organized under the laws of a state other than Rhode Island, that it is registered to do business in Rhode Island, the names and aliases, date of birth, social security numbers, and capacity of all officers, directors, managers and principal owners, and the name of the registered agent and the address of the registered office for service of process, if any;
b.
If the applicant intends to operate the adult entertainment use under a name other than that of the applicant, the applicant must state the use's fictitious name;
c.
Whether the applicant or any of the other individuals listed in section 5.4-30(d)(1)a. have been convicted of a specified criminal act within the times set forth in subsection 5.4-30(d)(1)i., and if so, the specified criminal act involved, the date and place of conviction.
d.
Whether the applicant or any of the other individuals listed in subsection (d)(1)a. has had a previous license under this or any other type of adult entertainment licensing process, law, ordinance from any type of governmental entity anywhere in the United States, denied, suspended or revoked and if so, the name and location of the adult entertainment use for which the license was denied, suspended or revoked, as well as the date of the denial, suspension or revocation.
e.
Whether the applicant or any of the other individuals listed in subsection (d)(1)a. has been a partner in a partnership, or a principal owner of a corporation or legal entity or other recognized legal entity whose license under this or any other type of adult entertainment licensing process, law, or ordinance from any type of governmental entity anywhere in the United States, denied, suspended or revoked, and if so, the name and location of the adult entertainment use for which the license was denied, suspended or revoked as well as the date of the denial, suspension or revocation;
f.
Whether the applicant or any of the other individuals listed in subsection (d)(1)a. holds any other licenses under this article or any other type of adult entertainment licensing process, law, or ordinance for any type of governmental entity anywhere in the United States, and if so, the names and locations of such other licensed uses;
g.
The location of the proposed use, including a legal description of the property, the street address, and all telephone numbers, if any;
h.
Proof of ownership or the applicant's right to possession and use of the property;
i.
The applicant's mailing address and residential address;
j.
A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the use, and showing all interior walls and rooms, said diagram being oriented to the north or some designated street or object and shall be drawn to a designated scale with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches showing all egress passageways and their dimensions, and all exit doors including dimensions and direction of swing;
k.
A site plan, prepared by the proper design professional, currently licensed in the State of Rhode Island and holding a valid and current certificate of authorization, in accordance with all applicable state statutes which shall show:
1.
The property lines and existing structures within a radius of two thousand five hundred (2,500) feet from the subject site;
2.
A listing of the type of use for each existing structure within the specified radius.
i.
If a person who wishes to obtain a license under this article is an individual, he/she must sign the application for an adult entertainment license as applicant under pain and penalty of perjury. If the person is other than an individual, each owner and principal owner of the use must sign the application for an adult entertainment license as applicant upon pain and penalty of perjury.
ii.
The town council shall determine the completeness of the application, and if the application complies it will be accepted for consideration by the town council.
(e)
Applicants for a license under this article shall have a continuing duty to promptly supplement application information required herein in the event that said information changes in any material way from what is stated on the application. The failure to comply with said continuing duty within thirty (30) days from the date of such change shall be grounds for suspension of a license.
(f)
In the event that the town clerk determines or learns at any time that the applicant has improperly completed the application for an adult entertainment license, the clerk will promptly notify the applicant of such fact and allow the applicant to properly complete the application.
(g)
The application process described herein must be repeated for each year that a licensee wishes to renew a license.
(h)
The applicant shall pay a non-refundable application fee of one hundred fifty dollars ($150.00) at the time of filing an application under this article and at the time of the filing of each annual renewal.
(i)
The fact that the applicant possesses other types of federal, state, or town licenses does not exempt such applicant from the requirements for obtaining a license issued pursuant to this article.
(Ch. 176, 10-3-05)
Sec. 5.4-29. - Investigation.#
Upon receipt of a completed application and upon payment of the non-refundable application fee, the town clerk shall immediately stamp the application as filed which shall constitute initial acceptance of the application. The town clerk will then send photocopies of the application to the police department, the building official's department, the appropriate fire district, and any other affected department or agency. Each department or agency shall promptly conduct an investigation of the applicant, application, and proposed use in accordance with its responsibilities. Said investigation shall be completed within forty (40) days of the date the application was deemed complete by the town clerk. At the conclusion of an investigation, each department or agency shall indicate on the photocopy of the application its approval or disapproval, date and sign the photocopy of the application, and in the event of disapproval, state the reasons therefore. Each department or agency shall then return the photocopy of the application to the town clerk for forwarding to the town council.
(Ch. 176, 10-3-05)
Sec. 5.4-30. - Issuance of the adult entertainment license.#
(a)
Once all necessary departments and agencies have returned the photocopies of the application to the town clerk, the application will be placed on the agenda for the next scheduled town council meeting for public hearing and consideration of the application.
(b)
The town council shall conduct a review of the application and investigation as part of the public hearing and consideration of the application. The council shall require the presence of the application at the public hearing and may solicit or hear the testimony of any interested party or member of the general public.
(c)
Issuance.
(1)
The town council may direct the town clerk to issue the license unless one (1) or more of the criteria set forth in section 5.4-30(d)(1) below is present.
(2)
The license, if issued, shall state on its face the name of the person or persons to whom it is issued, the expiration date, and the address of the use. The license shall be posted in a conspicuous place at or near the entrance to the use. A license issued under this article shall be transferable only pursuant to the requirements of section 5.4-36 herein.
(d)
Denial.
(1)
The town council shall deny a request for issuance of a license for any of the following reasons:
a.
An applicant is under twenty-one (21) years of age;
b.
In the case of renewal, if the applicant is overdue in payment to the town of taxes, fees, fines, or penalties assessed or imposed upon the use or its property;
c.
An applicant has failed to provide any information required by this article for the issuance of the license or has falsely answered a question on the application form or request for information;
d.
The premises for the use have been disapproved by an inspecting agency on the grounds that the proposed use is in violation of any standard, regulation, law or ordinance adopted or administered by such agency;
e.
The application or license fees have not been paid;
f.
The applicant is found to be in violation of, or its not in compliance with, any relevant statutes, codes, ordinances, regulations or other laws in effect in the town;
g.
The granting of the application would violate a court order issued out of any court of competent jurisdiction;
h.
The applicant has had a license issued under this article which has been suspended or revoked within the previous twelve (12) months;
i.
An applicant has been convicted of a specific criminal act or acts for which:
1.
Less than two (2) years have elapsed since the date of the conviction or the date of the release from confinement, whichever is the later date, if the conviction is for a misdemeanor offense; or
2.
Less than five (5) years have elapsed since the date of the conviction or the date of the release from confinement, whichever is the later date, if the conviction is for a felony offense; or
3.
Less than five (5) years have elapsed since the date of the conviction or the date of the release from confinement, whichever is the later date, if the convictions are for two (2) or more misdemeanor offenses; or
4.
An appeal is currently pending for the conviction of any misdemeanor or felony.
j.
The corporation for which a license has been issued or requested is not in good standing as required by the secretary of state or tax administrator of the state in which the corporation is incorporated.
k.
If an applicant has had a license issued under this or any other type of adult entertainment licensing process from another city, town, county, state, or country denied, suspended, or revoked for cause within five (5) years of the date of the application.
(2)
In the event that the town council denies a request for issuance of a license after a public hearing thereon, the council shall make written findings of fact stating the reason for a denial and will so notify the applicant within five (5) days of such decision. The decision of the town council shall constitute a final decision for all purposes.
(3)
Notwithstanding any other time periods set forth in this article, no entertainment license shall be issued by the town clerk until the building in which the use is to be housed is ready for occupancy with such furniture, fixtures, and equipment in place as is necessary to comply with the provisions of this article as well as any other requirements determined by the building official, the appropriate fire district's fire marshal, and then only after inspection of the premises has been made by the building official and the appropriate fire district's fire marshal to determine that the applicant has complied with the plans and specification submitted upon application.
(4)
Notification under this article shall mean a mailing to the licensee by regular mail, postage prepaid, at the address listed on the license application, and the effective date for the notice shall be counted from the date of such mailing.
(Ch. 176, 10-3-05)
Sec. 5.4-31. - Annual license fees.#
(a)
The annual license fee, including renewal fees, for an adult entertainment license shall be five hundred dollars ($500.00). This fee does not include the application fee required by section 5.4-28(h).
(b)
The annual license fee, including renewal fees, for a manager's, entertainer's or server's entertainment license shall be one hundred dollars ($100.00).
(c)
The annual license fees shall be payable to the Town of Hopkinton General Fund.
(Ch. 176, 10-3-05)
Sec. 5.4-32. - Expiration and renewal of license.#
(a)
Each license shall expire one (1) year from the date of issuance and may be renewed only by making application as provided in section 5.4-28 (for renewals, filing of original survey shall be sufficient) of this article and payment of the application fee. Application for renewal of a license shall be made at least sixty (60) days before the expiration date of the license. If a renewal application is submitted less than sixty (60) days before the expiration date of the license, the expiration date of the license will not be continued and the applicant/licensee will be accepting the risk that the request for a renewal of the license may not be completed in time to ensure continuous operation of the business. An expired license is invalid.
(b)
The town council may deny a request for a renewal on the same grounds as stated in sections 5.4-30(d)(1) or (3). If the council denies a request for a renewal of license and then finds that the basis for the denial has been corrected, the applicant shall be so notified and a renewal of the license will be processed if at least thirty (30) days have elapsed since the date the application for renewal was denied and the correction has occurred within six (6) months of submitting the application for renewal.
(Ch. 176, 10-3-05)
Sec. 5.4-33. - Suspension of license.#
(a)
The town council shall suspend a license if it finds that:
(1)
The licensee, owner, principal owner or manager has:
a.
Violated or is not in compliance with any section of this article or has been convicted of, or plead guilty or nolo contender to any specified criminal acts; or
b.
Been found to have operated, or been found guilty of operating the use, in violation of a building, fire, health, or zoning statute, code ordinance or regulation, whether federal, state or local, said determination being based on investigation by the division, department, or agency charged with enforcing said rules or laws. In the event of such a statute, code, ordinance, or regulation violation, and if the violation is of a type that can be corrected, the council shall notify the licensee of the violation and shall allow the licensee a seven-day period in which to correct the violation. If the licensee fails to correct the violation before the expiration of the seven-day period, the council shall forthwith suspend the license and notify the licensee of the suspension; or
c.
In the event that the town council suspends a license on the grounds that a licensee engaged in a license transfer contrary to section 5.4-36 of this article, the council shall forthwith notify the licensee of the suspension. The suspension shall remain in full force and effect until the procedure for transfer as set for the in section 5.4-36 has been followed; or
d.
Failed to comply with the continuing duty of an applicant or licensee to supplement an application requesting issuance of a license pursuant to section 5.4-28(e) herein; or
e.
Operated under the license when the corporation in whose name the licensee held is no longer in good standing according to the secretary of the state or tax administrator of the state in which the corporation in incorporated.
(2)
An employee of the licensee has:
a.
Been convicted of, or plead guilty or nolo contendre to, any specified criminal acts; or
b.
Has been found to have violated the prohibitions contained in section 5.4-39.
(b)
In the event the town council determines a license should be suspended, after having received information demonstrating or evidencing violation of section 5.4-33, the council shall make written findings of fact stating the reasons for the suspension and will so notify the licensee within five (5) days of such decision. All license suspensions under this section shall be for a period of thirty (30) days. The thirty (30) days shall commence eleven (11) calendar days from the date the town council notifies the licensee of the grounds for suspension. In the event that the violation of the statute, law, or ordinance or regulation in question has not been corrected within the thirty (30) days suspension period, the suspension will continue until the violation has been corrected, as verified by the appropriate authority having jurisdiction over the violation. If the violation has not been corrected within six (6) months the town council will have the authority to revoke the license according to the procedures set forth in section 5.4-35.
(c)
A license shall be entitled to a show-cause hearing before the town council as to why the license should not be suspended under this section. The licensee shall have ten (10) days to request such hearing after the license has received notice of the decision to suspend the license. Upon request the council shall schedule a show-cause hearing within fourteen (14) days of receipt of the request and will so notify the licensee of the date, time and place of such hearing.
(Ch. 176, 10-3-05)
Sec. 5.4-34. - Summary suspension.#
(a)
Where the town council has reasonable grounds to believe and find that a license has been guilty of a willful violation of any applicable law, ordinance, rule or regulation and, as a result, there exists an imminent threat to the public health, safety and welfare which requires emergency action, the town council may temporarily and summarily suspend the license pending a request for proceedings by the licensee.
(b)
The temporary suspension of a license without notice pending any prosecution, investigation or public hearing shall be for a period not to exceed fifteen (15) days. The licensee, during the time period, may request a hearing providing for in section 5.4-35(d). If the licensee does not request a hearing within said fifteen (15) days, then the license shall remain suspended for an additional fifteen-day period or until the reason for the summary suspension and imminent threat to the public health, safety and welfare has been eliminated. If the reason for the summary suspension has not been corrected within six (6) months, the town council will have the authority to revoke the license according to the procedures set forth in section 5.4-35.
(Ch. 176, 10-3-05)
Sec. 5.4-35. - Revocation of license.#
(a)
The town council shall revoke a license upon determination that:
(1)
A cause for suspension as set forth in section 5.4-33 of this article occurs and the license has previously been suspended within the proceeding twelve (12) months; or
(2)
A license has been suspended under section 5.4-33 and the licensee has failed to correct the violation of which the license was suspended within six (6) months; or
(3)
A licensee, owner, principal owner, or manager gave false or misleading information in the material submitted during the application process; or
(4)
A licensee, owner, principal owner, manager, or employee has allowed possession, use or sale of controlled substances to occur on the licensed premises of the use; or
(5)
A licensee, owner, principal owner, manager, or employee has allowed prostitution to occur on the licensed premises of the use; or
(6)
A licensee, owner, principal owner, manager, or employee has operated the use during a period of time when the licensee's license was suspended; or
(7)
A licensee, owner, principal owner, manager, or employee has been convicted of a specified criminal act for which the time period set forth in section 5.4-30(d)(1)i. of this article has not elapsed; or
(8)
A licensee, owner, principal owner, manager, or employee has committed an act or action which occurred on the premises of the use, which act or actions constituted a specified criminal act for which a conviction had been obtained, or a plea of guilty or nolo contender had been entered. The fact that a conviction is being appealed shall not stay the revocation of the license; or
(9)
A licensee, owner, principal owner, manager, or employee is delinquent in payment to the town of any taxes, fees, or other financial obligation; or
(10)
A licensee, owner, principal owner, manager, or employee has allowed any specified sexual activity to occur in or on the premises of the use; or
(11)
A licensee, owner, principal owner, manager, or employee has allowed any activity, conduct or sale of material that has been found by a court of law to be obscene; or
(12)
A licensee, owner, principal owner, manager, or employee has operated more than one (1) use within the same building, structure, or portion thereof.
(b)
In the event the town council determines a license should be revoked, after having received information demonstrating or evidencing a violation of section 5.4-35, the council shall make written findings of fact stating the reasons for the revocation and will so notify the licensee within five (5) days of such decision. A license shall be entitled to request a show-cause hearing in the event the council determines that a revocation is warranted. A request for a hearing must be received by the town council within ten (10) days of the notification of revocation to the licensee. If the council receives no request for a hearing within ten (10) days of notification, the decision to revoke the license is final. The town council will schedule any requested hearing within fourteen (14) days of the receipt of the request and will so notify the licensee of the date, time and place of the hearing. The hearing shall follow the relevant procedures of section 5.4-30(d) herein.
(c)
All revocations shall be for a period of two (2) years. A licensee, owner or principal owner who has a license revoked shall be ineligible to apply of a license for two (2) years from the date the revocation became effective.
(d)
A licensee shall be entitled to a show-cause hearing before the town council if the council seeks to suspend or revoke a license issued pursuant to this article, for reasons stated herein, pursuant to the following procedure:
(1)
The town council shall hear statements and consider all evidence from the police department or other enforcement officers, the licensee, the owner, the principal owner, or other affected department, or that the owner, the principal owner, or other affected department, or that other witness shall offer which is relevant to the violation of any statute, law, ordinance or regulation alleged to have occurred. The hearing shall be an informal quasi-judicial hearing with the rules of evidence used as a guide for the presentation of evidence. All testimony by witnesses must be sworn testimony; the stenographer or the council shall swear in all witnesses. The council shall make findings of act and issue an order from the statements, evidence, and arguments offered by proof which reaches a preponderance of evidence. If the council determines that grounds exist for suspension or revocation of the license it shall issue an order suspending or revoking the license. The order shall be prepared within thirty (30) calendar days after the hearing is concluded. A copy of the order shall be mailed, postage prepaid, or served on the licensee or owner at the address shown on the license.
(2)
The town council shall have the power to issue subpoenas and grant continuances when necessary. Subpoenas may be issued to require the presence of persons and/or the production of papers, books, records or other documents necessary for a fair determination of any issue presented at the hearing.
(3)
The licensee, owner and principal owner may be represented by counsel at all hearings. The town solicitor will act on behalf of the town during the hearings.
(4)
All hearings before the town council shall be recorded stenographically. Any person requesting a transcript of such hearing shall post a deposit in the amount required by the council and shall pay all costs of preparing such record.
(e)
The written order of the town council shall constitute a final decision for all purposes.
(f)
In the event of a suspension or revocation of a license, or the cessation of the use for any reason, no portion of the license fee shall be refunded.
(Ch. 176, 10-3-05)
Sec. 5.4-36. - Transfer of license.#
(a)
The adult entertainment license granted under this article is valid only at the location and address designated in the application for license.
(b)
A licensee shall not transfer a license issued under this article either directly or indirectly to any person unless and until such person satisfies the following requirements:
(1)
Files the equivalent of a new application with the town council and a new license is issued pursuant to this Article 5.4; and
(2)
Pays a transfer fee of twenty (20) percent of the annual license fee.
(c)
No license may be transferred when the town council has notified the licensee that suspension or revocation proceedings have been or will be brought against the licensee.
(d)
A license cannot be transferred to a different location.
(e)
A license issued under this article is invalid if there is any attempt to transfer the license either directly or indirectly in violation of this section.
(Ch. 176, 10-3-05)
Sec. 5.4-37. - Manager, entertainer, and server's entertainment license.#
(a)
It is unlawful for any person to work as a manager, entertainer, or server in a use with an adult entertainment license issued under this article, without the manager, entertainer, or server first obtaining a manager, entertainer, or server's adult entertainment license from the town, or to work as a manager, entertainer, or server at such a licensed use after such person's entertainment license to do so has been suspended or revoked.
(b)
All persons desiring to secure a manager, entertainer, or server's entertainment license shall make a verified application to the Hopkinton Town Council. All applicators shall be submitted in the individual name of the person seeking such entertainment license with a designation of the type of entertainment license desired, to wit, a manager, an entertainer or a server. All applications shall be submitted on a form supplied by the town clerk and shall require the following information:
(1)
The applicant's full name and any aliases or other names by which the applicant is known or which the applicant has used at any time and the current and previous resident addresses for the past two (2) years, the home number, date and place of birth, social security number, and any stage names or nicknames used in entertaining;
(2)
The name and address of each use and employer with an adult entertainment license where the applicant intends to work under the auspices of their manager, entertainer, or server's adult entertainment license, and an "intent to hire" statement from the licensed employer, or an employer awaiting licensing, that the employer intends to hire the applicant to manage, entertain, or serve on the premises;
(3)
A statement from the applicant that the applicant has not been convicted of, or plead guilty or nolo contendre, or diverted from prosecution for specified criminal acts within the past two (2) years preceding the date of the application; and
(4)
Certified documentation that the applicant has attained the age of twenty-one (21) years at the time the application is submitted, said documentation to be photocopied by the town clerk and kept on file. Any of the following shall be accepted as documentation of age:
a.
A motor vehicle operator's license issued by any state, bearing the applicant's photograph and date of birth; or
b.
A state-issued identification card bearing the applicant's photograph and date of birth; or
c.
An official and valid passport issued by the United States of America; or
d.
An immigration card issued by the United States of America; or
e.
Any other form of picture identification issued by a governmental entity that is deemed reliable by the town council.
(c)
All complete applications shall be placed on the agenda of the next council meeting after the date of the application. The council shall issue the individual entertainment license unless:
(1)
The applicant is under the age of twenty-one (21); or
(2)
The applicant has failed to provide the information required by this section, failed to completely fill out the application, or had provided false or misleading data on the application; or
(3)
The appropriate license fee has not been paid; or
(4)
The applicant has been convicted, plead guilty, plead nolo contendre, or diverted from prosecution for a specified criminal act within the past two (2) years; or
(5)
The applicant has had an adult entertainment license suspended or revoked by the Town of Hopkinton within the past two (2) years for violations of this article.
(d)
All suspensions are revocations of individual adult entertainment licenses for managers, entertainers, and servers will comply with the pertinent procedural requirements of section 5.4-33 and section 5.4-35.
(e)
All manager, entertainers and server's adult entertainment licenses are issued to the named individual on the application and are neither transferable nor negotiable, and are valid for a period of one (1) year from the date of issue, with renewal pursuant to the pertinent requirements of section 5.4-32, and are valid only at the premises stated in the yearly application. All changes in employer or location will require a new application for licensing.
(Ch. 176, 10-3-05)
Sec. 5.4-38. - Adult entertainment license use regulations.#
(a)
A licensee shall permit representatives of the building official's office, the fire department, or the police department to inspect the premises of the use for the purpose of ensuring compliance with all applicable statutes, laws, codes, ordinances and regulations, at any time it is occupied by anyone or open for business.
(b)
All adult entertainment licenses granted under this article shall display as follows:
(1)
Every use shall post its adult entertainment license in a conspicuous place and manner on the premises housing the use.
(2)
Every person holding a manager, entertainer, or server's adult entertainment license shall post said license in their work area on the premises so that it shall be readily available for inspection by the town authorities responsible for enforcement to this article.
(c)
A manager shall be on duty at all times the premises are open for business with the following requirements:
(1)
The manager will possess a valid manager's adult entertainment license, and the name of the manager on duty shall be prominently posted during the manager's shift.
(2)
It shall be the responsibility of the manager to verify that any person who works as an entertainer or server and the use possesses a current and valid adult entertainment license pursuant to this article and that such licenses are prominently displayed.
(d)
A licensee who exhibits films, video cassettes or other video reproductions in a peep show booth shall comply with the following requirements:
(1)
There must be one (1) or more manager's stations;
(2)
At least one (1) employee must be on duty and situated at a manager's station at all times that any patron is upon the licensed premises;
(3)
The interior of the licensed premises shall be configured in such a way that there is an unobstructed view from a manager's station of every area to which any patron is permitted access for any purpose, excluding rest rooms. Rest rooms may not contain video display equipment. If there are two (2) manager's stations designated, than the interior shall be configured in such a manner that there is an unobstructed view of each area to which a patron is permitted access for any purpose from at least one (1) of the manager's stations. The view required by this subsection must be by direct line of sight from the manager's station. The view area shall remain unobstructed by any doors, walls, merchandise, display racks, or other materials at all times. There must be designated areas on the premises where patrons are not allowed, said area to equal ten (10) percent of the total floor space of the use premises and such areas must be cleared posted as to no patron entry.
(4)
No peep booth may be occupied by more than one (1) person at any one (1) time; and
(5)
No door shall be placed on any peep booth, and no holes or openings shall be placed or allowed to remain in the wall between any two (2) adjacent peep booths.
(e)
All adult cabarets must meet the following requirements:
(1)
All adult cabarets shall have one (1) or more separate areas designated as a stage in the diagram submitted as part of the application process for the adult entertainment license;
(2)
All entertainers shall perform only upon the stage;
(3)
The stage must be raised at least two (2) feet above the primary level of the customer floor and be fixed and immovable;
(4)
No seating for the audience shall be permitted within three (3) feet of the edge of the stage; and
(5)
No members of the audience shall be permitted upon the stage or within three (3) feet of the edge of the stage.
(f)
All adult entertainment licenses are issued with the following restrictions:
(1)
No employee, server, customer, patron or other person, other than an entertainer as provided herein, shall appear on the licensed premises while nude, unclothed, in less than opaque attire, or otherwise in any fashion that exposes to the view of any other person any specified anatomical area;
(2)
No entertainer, licensed or subject to licensing under this article, shall appear or perform in any licensed use while nude, unclothed, in less than opaque attire or costume, or otherwise in any fashion that exposes to the view of any other person any of the specified anatomical areas except under the following conditions and restrictions:
a.
During the actual performance of an act, routine, dance, set, or similar entertainment display and the entertainer performs solely upon the stage;
b.
The entertainer is separated from the patrons by a distance of three (3) feet; and
c.
Whenever the entertainer ceases to perform, leaves the stage, or is not upon the state, then all requirements of section 5.4-38(f)(1) above shall apply.
(3)
No employee of the licensee shall receive tips from the patrons except as follows:
a.
A licensee wanting to provide for tips from its patrons to its servers, entertainers, and managers shall establish a tip box or other container to receive tips;
b.
All tips for such employees shall be placed by the patrons into the tip box;
c.
Any licensee which offers a tip box shall post one (1) or more signs to be conspicuously visible to the patrons on the premises in letters at least two (2) inches in height and the coloring of the letters is to be clear in contrast to the background and is to read as follows:
ALL TIPS ARE TO BE PLACED IN THE TIP BOX AND NOT HANDED DIRECTLY TO THE EMPLOYEE. ANY PHYSICAL CONTACT BETWEEN THE PATRON AND THE EMPLOYEE IS STRICTLY PROHIBITED
d.
No employee is permitted to demand any gratuity from any patron or customer for any services or entertainment.
(4)
No employee of the licensee, nor any customer or patron, shall perform any specified sexual activity as defined in this article.
(5)
No employee of the licensee, nor any customer or patron, shall engage in any activity of prostitution.
(6)
No employee of the licensee, nor any customer or patron, shall touch, fondle, or caress any specified anatomical area of another person, nor permit another person to touch, fondle or caress any specified anatomical area of such employee of the licensee or any customer or patron, whether such specified anatomical areas are clothed, unclothed, covered or exposed.
(7)
No licensee, or employee of the licensee, shall:
a.
Permit alcoholic liquors or cereal malt beverages to be sold, brought upon, or consumed on the premises of the licensed use;
b.
Allow or permit the sale, distribution, delivery, or consumption of any controlled substance or illegal drug or narcotic on the premises of the licensed use;
c.
Allow or permit any person under the age of twenty-one (21) on the premises of the licensed use;
d.
Allow or permit any act of prostitution or patronizing or solicitation or prostitution on the premises of the licensed use; or
e.
Allow or permit a violation of this article, any other town ordinance, or other state or federal law on the premises of the licensed use;
(8)
All businesses possessing an adult entertainment license shall not be opened for business nor shall the licensee, or any employee of the licensee allow patrons on the licensed premises as follows:
a.
On any Monday through Saturday from 12:00 midnight to 12:00 noon.
b.
On any Sunday.
(9)
The licensee, or any employee of the licensee shall not allow or permit anyone under the age of twenty-one (21) to be in or upon the licensed premises.
(Ch. 176, 10-3-05)
Sec. 5.4-39. - Violations and penalties.#
(a)
It shall be unlawful for any person to provide adult entertainment in the Town of Hopkinton if:
(1)
The use or business does not have an adult entertainment license issued under this article;
(2)
The adult entertainment license issued under this article is under suspension, revoked, or expired;
(3)
The licensee employs any manager, server, or entertainer who does not hold the applicable adult entertainment license under this article; or
(4)
The licensee has not paid all applicable application fees or license fees.
(b)
It shall be unlawful for any licensee to allow or permit the following;
(1)
Operation of the licensed use in violation of municipal ordinances, state or federal law, or applicable local, state or federal regulations; or
(2)
Operation of the licensed use in violation of any section of this article.
(c)
Penalties for the violation of any section of this article shall be as follows:
(1)
For the first offense, any violation shall be punishable by a fine in a minimum amount of fifty dollars ($50.00) and maximum amount of two hundred dollars ($200.00), plus all applicable court costs;
(2)
For a second, and all subsequent offenses, any violation shall be punishable by a fine in a minimum amount of two hundred dollars ($200.00) and a maximum amount of five hundred dollars ($500.00) plus all applicable court costs;
(3)
Any violation of this article by a license holder subject the holder to the suspension and revocation procedure under this article; and
(4)
Each day a violation occurs under this section shall be considered a separate and distinct violation.
(Ch. 176, 10-3-05)