NoPornNorthampton provides this draft health regulation for public comment. Its intent is to reduce high risk activity known to occur around porn shop viewing booths and combat diseases such as AIDS. It does not ban viewing booths, but only regulates them.
This proposed regulation draws on similar regulations put in place elsewhere in the US. These have been upheld in court as serving important public interests while respecting constitutional protections of expression. This regulation has been prepared by NPN’s legal counsel and reviewed by other local counsel.
DRAFT REGULATION FOR HEALTH INSPECTOR:
LICENSES FOR VIEWING BOOTHS IN ADULT ENTERTAINMENT ESTABLISHMENTS
2. Licensing Requirement.
3. Physical Layout of Adult Enterprise.
4. Conditions of Operation.
5. Operator’s Responsibility for Compliance.
7. Violation Penalties.
8. Compliance for Presently Operating Viewing Booths.
9. Severability/Savings Clause.
Section 1. Definitions.
Except as specifically defined herein, the words and phrases used in this Ordinance carry their customary dictionary meanings unless clearly indicated by the text.
“Adult Enterprise” is defined to include the following uses:
(a) Adult Bookstore: an establishment which has as more than twenty-five percent (25%) of its gross floor area, or 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 Mass. Gen. L. Chapter 272, Section 31;
(b) Adult Motion Picture Theatre: a building used for presenting material distinguished by an emphasis on matter depicting, describing, or relating to sexual conduct or sexual excitement as defined in Mass. Gen. L. Chapter 272, Section 31;
(c) Adult Paraphernalia Store: an establishment which has as more than twenty-five percent (25%) of its gross floor area, or a substantial or significant portion of its stock-in-trade, 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 Mass. Gen. L. Chapter 272, Section 31;
(d) Adult Video Store: an establishment which has as more than twenty-five percent (25%) of its gross floor area, or 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 Mass. Gen. L. Chapter 272, Section 31;
(e) Adult Entertainment Establishment: an establishment which displays entertainment which is distinguished or characterized by its emphasis depicting, describing, or relating to sexual conduct or sexual excitement as defined in Mass. Gen. L. Chapter 272, Section 31, including entertainment which features nude dancing, strippers or similar performers.
“Viewing booth” means and includes any booth, cubicle, room or stall within the premises of an Adult Enterprise used to view or display any adult-oriented materials, including but not limited to films, movies, photographs, books, magazines, slides, periodicals or other printed matter, DVD’s, videocassettes or reproductions of any kind, or for the use of any devices or paraphernalia which are designed for or used in connection with specified sexual activities as defined in Mass. Gen. L. Chapter 272, Section 31.
“Common area” means any room, rooms, hallways, passageways, or other areas accessible to patrons and customers within the Adult Enterprise.
“Operator” means any person, partnership, company, corporation or other entity operating, conducting or maintaining an Adult Enterprise.
Section 2. Licensing Requirement.
No person operating an Adult Enterprise shall keep for public, customer or patron use or permit or allow the use of any viewing booth without first obtaining a license to do so from the Northampton City Council as provided herein.
A. Licensing Procedure, Hearing, and Term: Applications for a license required by this Ordinance shall be made in writing to the Northampton City Council on forms to be prescribed by the Council and provided by the Northampton City Clerk’s office, setting forth the name and address of the applicant, owner and operator, the name and address of the business, the number of viewing booths to be licensed, and any other information deemed necessary and relevant by the Council.
Upon the filing of an application, the Police Chief and/or the Fire Chief and the zoning enforcement officer and health inspector, or their respective designees, shall inspect the premises for compliance with this Ordinance and any other applicable provisions of any City or State statute, rule, regulation or ordinance, and shall report their findings along with recommendations, if any, to the City Council at the hearing to be held on the application. The City Council shall grant a license for a viewing booth(s) only upon finding, after a public hearing, that all provisions of this Ordinance are met. Appropriate notice of the hearing shall be given to abutters of the proposed Adult Enterprise, and abutters of abutters within 1,000 feet. Licenses issued pursuant to this ordinance are for a term of one year, and may be renewed year to year by the Council upon application and after public hearing.
B. License Fee: The license must specify the number of viewing booths permitted. The annual license fee for each viewing booth shall be an amount sufficient to cover the cost of enforcing this ordinance.
C. Suspension or Revocation of License: The City Council may, after notice to the licensee and hearing, suspend or revoke any viewing booth license issued under this Ordinance, upon a finding that the licensee has violated any of the provisions of this Ordinance.
D. Notice of Decision: Any denial, suspension or revocation by the City Council must be in writing setting forth its findings and conclusions and must include notification of the right to appeal. A decision is deemed to be made for purposes of appeal periods as of the date the written decision is dated and issued to the applicant. Proof of mailing to the applicant at the address appearing on the application or the latest address on file with the City Clerk constitutes the date from which an appeal period commences.
Section 3. Physical Layout of Adult Enterprise.
Any Adult Enterprise having viewing booths available for customers, patrons or any other individuals must comply with the following requirements:
A. Access: Viewing booths must be accessible to and from all common areas within the interior of the Adult Enterprise. There must be no doors, drapes, curtains, or other closures separating any portion of the common area from any viewing booth.
B. Construction: Every viewing booth must meet the following construction requirements:
1. Each viewing booth must be arranged so that it is separated from adjacent viewing booths by a solid wall with no view into any adjacent booth.
2. Each viewing booth must be so arranged that at least one side is totally open to an adjacent common lighted area so that there is an unobstructed, continuous, open view from the adjacent common area into the entire interior portion of the viewing booth. No viewing booth may have any door, drape, curtain, or any other closure over or covering any portion of the open side.
3. All walls must be solid and without any openings, extending from the floor to a height of not less than six feet and must be light-colored, non-absorbent, smooth-textured and easily cleanable.
4. The floor of each viewing booth must be light-colored, non-absorbent, smooth textured and easily cleanable.
5. The adjacent common area to the viewing booth must be equipped with overhead lighting fixtures of sufficient intensity to illu
minate all areas of the adjacent common area to the same level of illumination as that maintained in the common areas of the premises where merchandise is displayed for sale or view.
Section 4. Conditions of Operation.
A. Occupants: No more than one individual is allowed to occupy a viewing booth at any one time.
B. Employees: The applicant, or anyone regularly employed on the premises, must not be a person convicted of contributing to the delinquency of a minor as defined in Mass. Gen. L. Chapter 119, Section 63, or any sex offense as defined in Mass. Gen. L. Chapter 272, including but not limited to prostitution, obscenity, child pornography, sexual performance by a child, public lewdness, indecent exposure, sexual assault, and solicitation for sex.
C. Maintenance of Facilities: The walls, floors and furnishings of viewing booths shall be regularly cleaned, and employees shall be given appropriate safety and hygiene instructions and materials for disinfecting areas where bodily fluids may be found. The health inspector, or his/her designees, may conduct periodic inspections without prior notice.
D. Minors: No Adult Enterprise shall be allowed to disseminate adult matter to minors, cause or allow Adult Enterprise displays to be viewed by minors, or allow minors to linger on the premises.
E. Compliance with Law: Compliance with all applicable zoning regulations, building codes, local ordinances and state law shall be a condition of receiving a license to operate viewing booths at an Adult Enterprise.
Section 5. Operator’s Responsibility for Compliance.
Every act or omission by an employee of the Adult Enterprise constituting or allowing a violation of the provisions of this Ordinance is deemed the act or omission of the operator, and the operator may be punished for such act or omission in the same manner as if the operator committed the act or caused the omission resulting in a violation of this Ordinance.
Section 6. Inspection.
All Adult Enterprises located within the City of Northampton providing viewing booths to its customers, patrons, and other individuals are to be open to inspection at all reasonable times by the Northampton Police Department and/or the
Northampton Health Inspector or his/her designee, or such other persons as the City Council may designate to monitor compliance with this Ordinance.
Section 7. Violation Penalties.
Any person, partnership, company, corporation, or other entity which is found to have violated this Ordinance is subject to punishment by a fine not exceeding $300 for each such violation, as authorized under Mass. Gen. L. Chapter 40A, Section 7. Each day that each such violation of this Ordinance exists constitutes a separate offense, punishable by the imposition of an additional fine not to exceed $300 for each such separate violation. Any enforcement actions will be brought in the name of the City of Northampton and all fines recovered thereunder inure to the benefit of the City.
Section 8. Compliance for Presently Operating Viewing Booths.
Any Adult Enterprise lawfully operating viewing booths as part of its business enterprise as of the date of the adoption of this Ordinance is allowed to continue operation without a license as required herein for a period of 60 days from the effective date of this Ordinance. At the end of this 60-day period, all viewing booths must be licensed under this Ordinance. Continued unlicensed operation constitutes a violation of this Ordinance.
Section 9. Severability/Savings Clause.
If any section, phrase, sentence or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion is deemed a separate, distinct and independent provision, and such holding does not affect the validity of the remaining sections, clauses, provisions, or portions of this Ordinance.