# Appendix Vol2 — Tennessee v. Dja Vu of Nashville, Inc. (No. 05-1194) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0605%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix Vol2 - **Published:** January 1, 2005 ## Text App. 125 after the words “confirm the layout of the booths.” and before the words “complies with the submitted diagram”. Section 18. Section 6.54.040(B)\(3) is amended by deleting that subsection in its entirety and substituting in lieu therefore: The police department shall complete its investiga- tion and the codes department, and health depart- ment shall complete their respective inspections and shall communicate the results to the board in wnt- ing within twenty days of receipt of the application. The written investigation from the codes depart- ment and health department shall end with sub- stantially one of the following statements: The location at Cae complies with Chapter 6.54 and the applica- ble health code sections of the metropolitan code. The location at . does not comply with Chapter 6.54 and the applicable health code sections of the metro- politan code. It ts in violation of the follow- ing provisions: Section numbers of code violations. The writing from the police department shall end with substantially the following statement: The police department’s criminal record check indicates that the persons listed on the application have/have not committed a crime of a sexual nature within the past five years. The persons listed on the application have committed the following crimes: Name Crime Date App. 126 Section 19. Section 6.54.040(B)(4) of the MCU is amended by deleting the subsection in its entirety and renumbering accordingly. Sectoin 20. Section 6.54.040(C) of the MCL is amended by deleting paragraph 1 in its entirety and substituting the following and renumbering the remaining subsections accordingly. 1. Within fifteen days of receiving the results of the investigation conducted by the police de- partment and the inspections by the codes de- partment, and health department the board will meet and determine if the applicant is in compli- ance with this code section and the applicable health statutes, ordinances and regulations. 2. Ifthe board determines that the applicant is in compliance with the applicable health stat- utes, ordinances and regulations, and the appli- cant has not committed a crime of a sexual nature, as defined in 6.54.010, is at least eight- een years of age, and has not given any false or misleading information on the application or omitted any material facts from the application then the board shall grant the license. False or misleading information does not include informa- tion which the applicant reasonably believed, af- ter exercising due diligence, was correct at the time of the application. 3. Ifthe board fails to meet within the time pe- riod specified, or fails to have a quorum at the meeting, then the license shall be deemed ap- proved and sent to the applicant by United States Mail to the address listed on the applica- tion. App. 127 Section 21. Section 6.54.040(C)(3) is amended by deleting paragraph 3 in its entirety and substituting the following and renumbering this subsection as number “5”. 5. If it is determined by the board, using the application and the inspection reports that the applicant has violated the provisions of the zon- ing code applicable to sexually oriented/adult en- tertainment businesses within the past two years, then the applicant is ineligible for a li- cense for one year from the date the citation was sustained. A violence of the zoning code shall be evidenced by a judgement of a court. The fact that the judgement is being appealed shall have no effect on the disqualification of the applicant until the judgement is reversed. Section 22. Section 6.54.040(C\4) 1s amended by adding the following sentence to the end of the paragraph, “False or misleading information does not include informa- tion which the applicant reasonably believed, after exercis- ing due diligence, was correct at the time of the application.” Section 23. Section 6.54.040(C\(7) of the MCL is amended by renumbering this subsection as subsection “9” and by deleting the words “fire department” after the words “inspection reports from the codes department” and before the words “and health department,” and by deleting the words “the applicable statutes, ordinance, and regula- tions” and substituting in lieu therefore the words “this code section or the applicable health statutes, health and. zoning ordinances and health and zoning regulations” after the words “if the board shall determine that the applicant is not in compliance with” and before the words : App. 128 “the applicant shall be notified in writing, the next busi- ness day”. Section 24. Section 6.54.040(C)\(9) of the MCL is amended by adding the words “Faise or misleading infor- mation does not include information which the applicant reasonably believed, after exercising due diligence, was correct at the time of the application.” at the end of that subsection and by renumbering this subsection as “11”. Section 25. Section 6.54.040(C\(10) of the MCL is amended by deleting the word “any” and substituting in lieu therefore the word “a” after the words “or his or her refusal or failure to appear at” and before the words “reasonable time and place for examination under oath regarding such application”. Section 26. Section 6.54.040(D)(1), 6.54.040(D)(1)(a) and 6.54.040(D)(1)\(e) of the MCL are amended by deleting the reference to “6.54.040(C)(5)” and substituting in heu therefore “6.54.040(C)(4)”. Further 6.54.040(D)(1)(a) is amended by deleting the word “five” in the first line and substituting in lieu therefore the word “fifteen”. Section 27. Section 6.54.040(D)(1\d) of the MCL is amended by deleting the reference to “6.54.040(C)(4)” and substituting in lieu therefore “6.54.040(C)(6)”. Section 28. Section 6.54.040(D)(2\d) of the MCL is amended by deleting this section in its entirety and substituting the following in leu therefore: d. An extension shall only be granted when the Codes inspector and the Health inspector the agree that an extension will not endanger the health or safety of the community and the board determines that the applicant has demonstrated App. 129 a good faith effort to make the necessary repairs or cure the violation(s) in a timely manner. Section 29. Section 6.54.040(F)(1)\(c) of the MCL is amended by deleting this section in its entirety and substituting the following in lieu therefore: e. At the hearing, the applicant may present evidence as to why his/her license should not be denied. If the applicant fails to appear at the hearing before the board he/she will have waived the right to present evidence to the board. Fail- ing to appear before the board will not preclude the applicant’s mght to appeal any denial to the circuit or chancery courts of Davidson County. Section 30. Section 6.54.040(E)(1)(d) of the MCL is amended by deleting the word “stating” and substituting in lieu therefore the word “state” after the words “the application at the hearing and in writing” and before the words “the reasoning for the boards decision.” Further Section 6.54.040(E)(1)(d) of the MCL is amended by deleting the word “reasoning” and substituting in lieu therefore the word “reasons” after the words “at the hearing and in writing state the” and before the words “for the board’s decision.” Section 31. Section 6.54.050(A)(1) of the MCL is amended by deleting the words “room or cubicle” after the words “having available for customers, patrons or mem- bers any booth” and before the words “for the private viewing of any sexually oriented entertainment” and by deleting the word “private” after the words “patrons or members any booth, room or cubicle for the” and before the words “viewing of any sexually oriented entertainment” and by deleting the words “or sexually oriented live exhibitions” after the words “sexually oriented films, App. 130 sexually oriented movies, sexually oriented videos” and before the words “shall submit a diagram under Section 6.54.040(A)(6)”. Section 32. Section 6.54.050(A)(1)(a) of the MCL is amended by deleting the words “room or cubicle” after the words “Access. Each booth,” and before the words “shall be totally accessible to and from aisles”. Section 33. Section 6.54.050(A)(1)(b) of the MCL is amended by deleting the words “room or cubicle” after the words “Construction. Every booth” and before the words “shall meet the following” Section 34. Section 6.54.050(A)(1)(b)(i) of the MCL is amended by deleting the words “room or cubicle” after the words “Each booth,” and before the words “shall be sepa- rated from” and by deleting the words “rooms and cubi- cles” after the words “shall be separated from adjacent booths,” and before the words “and any nonpublic areas by a solid or opaque wall;” Section 35. Section 6.54.050(A)(1)(b)(v) of the MCL is amended by deleting the words “room or cubicle” after the words “The lighting level of each booth” and before the words “shall be a minimum of ten footcandles”. Section 36. Section 6.54.050(A)(1)(c) of the MCL is amended by deleting this section in its entirety and substituting the following in lieu therefore: c. Occupants. Only one individual shall occupy a booth, at any time. No occupant of a booth shall engage in any type copulation, masturbation or the display of specified anatomical areas as de- fined herein, cause any bodily discharge of urine, App. 131 feces or semen while in the booth. No individual shall damage or deface any portion of the booth. Section 37. Section 6.54.050(A)(2) of the MCL is amended by deleting the words “or sexually oriented live exhibitions” at the end of that subsection. Section 38. Section 6.54.050(B)(1)(b) of the MCL is amended by deleting the reference to subsection “6.54.040(A)(5)(j)” and substituting in lieu therefore “6.54.040(A)(5)()”. Section 39. 6.54.050(B)(1)\(c) of the MCL is amended by deleting the words “have the ability in control or be” and substituting in lieu therefore the word “are” after the words “all persons having a financial interest in the business and who” and before the words “involved in the day-to-day operation of the business”. Section 40. 6.54.050(B)(2) of the MCL is amended by deleting the words “or any crime involving moral turpi- tude” after the words “convicted of a crime of a sexual nature, as defined in 6.54.010,” and before the words “in any jurisdiction shall be eligible to receive a license. Section 41. 6.54.050(B)(2)(c) of the MCL is amended by deleting this subsection in ist entirety and substituting the following in lieu therefore: The time is computed from the date of the convic- tion by the trial court to the date of the applica- tion. The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant until the trial court’s conviction is re- versed. — Section 42. 6.54.050(B)(3) of the MCL is amended by adding the words “False or misleading information does App. 132 not include information which the applicant reasonably believed, after exercising due diligence, was correct at the time of the application..” at the end of that subsection. Section 43. 6.54.050(B)(3)(a) of the MCL is amended by deleting the words “or any crime involving moral turpitude” at the end of that subsection paragraph. Section 44. 6.54.050(B)(3)(b) and 6.54.050(B)(3)(d) of the MCL is amended by deleting who word “longer” and substituting in lieu therefore the word “later” The amendment is to the last word in both subsections. Section 45. 6.54.050(B)(3)(e) of the MCL is amended by deleting the words “or any crime involving moral turpitude” after the words “crime of a sexual nature, as defined in 6.54.010.” and before the words “then the applicant shall not be eligible to receive a license” and by deleting the word “longer” at the end of this subsection and substituting in lieu therefore the word “later”. Section 46. 6.54.050(B)(3)(c) of the MCL is amended by adding the words “Chapter 17.36.260 of” after the words “If the misleading statements or omissions referred to violation of” and before the words “the zoning code” and by deleting the word “longer” at the end of this subsection and substituting in lieu therefore the word “later”. Section 47. 6.54.050(B)(4) of the MCL is amended by adding a new subsection 4 and renumbering the subse- quent subsections accordingly. New subsection “4” shall read, 4. The applicant shall not have had a sexually oriented business permit/license or similar busi- ness permit/license revoked within the last year immediately preceding the application. = App. 133 Section 438. Renumbered Section 6.54.050(B)(5) of the MCL is amended by deleting that subsection in its entirety and substituting in lieu therefore: 5. No applicant shall have been found to have previously violated Chapter 17.36.260 of the met- ropolitan zoning code applicable to sexually on- ented/adult entertainment businesses, as evidenced by the judgement of a court within one year imme- diately preceding the date of the application. If such violations exist, the applicant shall be ineligible for a license for one year from the date the citation was sustained. The fact that a trial court’s judgement is being appealed shall have no effect an the disqualification of the applicant until the trial court’s judgement is reversed. Section 49. 6.54.050(B)(5) of the MCL is amended by renumbering this subsection as “6” and by deleting the words “cubicles or stalls” after the words “if the applicant plans to have or has booths,” and before the words “for the purpose of viewing sexually oriented motion pictures,” and _by deleting the words “or-sexually oriented live entertain- ment” after the words “sexually oriented movies, sexually oriented films, sexually oriented videos” and before the words “then the booths,” and by deleting the words “cubi- cles or stalls” after the words “then the booths” and before the words “must comply with the requirements set out in 6.54.050(A).” . Section 50. 6.54.060(B) of the MCL is amended by deleting each date of “April 15, 1998” and substituting in lieu therefore the date “March 15, 1999” App. 134 Section 51. Section 6.54.070(A)(2) of the MCL is amended by deleting it in its entirety and the following substituted in lieu therefore: Application forms shall be available at the office of the board. Applicants may obtain their impli- cation from the codes department. Applicants must also submit with each application two 2X2 photos. a. Background check. All background checks shall be completed by the metropolitan police department. The police department my be no- tified of a need for a background check in two ways. The applicant brings her applica- tion, including a one of the two photos to the police department and has her fingerprints taken at the police department. The police then begin the background check and once completed, send the background check, ap- plication, fingerprint card, and photo to the office of the board. In the alternative, the applicant can obtain fingerprints as de- scribed below, turn into the board a com- plete application including, fingerprints and two photos and the board shall send the complete application to the police depart- ment requesting a background check. The police will return the complete application with the completed background check to the office of the board. b. Fingerprints. The applicant may have his/her fingerprints completed by the police department or other qualified person. c. Fees. If the applicant brings her applica- tion to the police department, the police de- partment shall not charge the applicant any App. 135 additional fee for fingerprinting or a back- ground check. If the applicant has the fin- gerprinting performed without informing the police department than it is for his/her application for a sexually oriented enter- tainer permit, then the applicant may retain the receipts for the fingerprinting and give then to the codes department when the ap- plicant files his/her application. The codes department shall subtract the expenses for the fingerprints from the $100.00 permit fee, and the applicant shall pay the difference. This same procedure applies if the applicant has his/her fingerprints taken by a qualified person other than the metropolitan police department. Photos can be taken by the co- des department at no additional fee or the applicant may have his/her photo taken elsewhere. Section 52. Section 6.54.070(A)(4)(b) of the MCL is amended by deleting that subsection in its entirety and substituting the following in lieu therefore: “Proof of the applicant’s date of birth demonstrating that the applicant is at least eighteen years of age;” Section 53. Section 6.54.070(A)(4)(c) of the MCL is amended by adding the words “regarding crimes of a sexual nature” inside the parentheses at the end of that subsection. Section 54. Section 6.54.070(A)(4)(d) of the MCL is amended by adding the words “regarding crimes of a sexual nature” inside the parentheses at the end of that subsection. Section 55. Section 6.54.070(A)(4)(c) of the MCL is amended by deleting the word “operated” and substituting App. 136 in lieu therefore the word “entertained” after the words “Whether the applicant previously” and before the words “in this or any other county, city or state under a sexually oriented business license/permit” and by adding the words “within the last two years” after the words “under a sexually oriented business license/permit or similar business license/permit” and before the words “For whom the applicant was employed or associated at the time.” And by deleting the word “ever” after the words “Whether the applicant has” and before the words “had such a license/permit revoked as suspended,” and by adding the words “within the last two years and” after the words “had such a license/permit revoked or suspended,” and before the words “the reason therefor and the business entity or trade name”. Section 56. Section 6.54.070(A)(4\(f) of the MCL is amended by deleting that subsection in its entirety and substituting the following in lieu therefore: All convictions for crimes of a sexual nature, as defined in Section 6.54.010, punishable as a mis- demeanor violation that has occurred within the past two years. All convictions for crimes of a sexual nature, as defined in Section 6.54.010, punishable as a felony that has occurred within the past five years. Section 57. Section 6.54.070(A)(4)(g) of the MCL is amended by adding the words “regarding crimes of a sexual nature” inside the parentheses at the end of that subsection and before the semicolon and the word “and”. Section 58. Section 6.54.070(B) of the MCL is amended by deleting that subsection in its entirety and substituting the following in lieu therefore: App. 137 Investigation. The police department shall inves- tigate the applicant’s criminal history by collect- ing the applicant’s fingerprints and 2X2 photo either by performing these functions or by re- viewing these items which were provided by the applicant and by performing a background inves- tigation for crimes of a sexual nature. The results of the investigation shall be filed in writing with the board no later than twenty days after the date the application was filed with the board. Any investigation information not filed with the board in the time period specified shall not pre- vent the applicant from receiving his/her permit and shall be treated by the board as if the report revealed no applicable criminal history. Subject to 6.54.150. Section 59. Section 6.54.070(C)(1) of the MCL is amended by deleting this section in its entirety and substituting the following in lieu therefore and renumber- ing the following paragraphs sequentially. 1. Within fifteen days of receiving the results of the investigation conducted by the police de- partment the board will meet and determine if the applicant has not been convicted of a crime of a sexual nature, as defined in 6.54.010, has not had a similar type of permit/license revoked in the last two years is at least eighteen years of age, and has not given may false or misleading information on the application or omitted any material facts from the application then the board shall grant the permit. False or misleading information does not mean any information which the applicant had reason to believe was correct. App. 138 \ 2. Ifthe board fails to meet within the time pe- riod specified, or fails to have a quorum at the meeting, then the permit shall be deemed ap- proved and sent to the applicant by United States Mail to the address listed on the applica- tion. Section 60. Section 6.54.070(C)(4) of the MCL is amended by adding the words “False or misleading infor- mation does not mean any information which the appli- cant had reason to believe was correct,” at the end of the paragraph. Section 61. Section 6.54.070(C)(5) of the MCL is amended by adding the words “the revocation of” after the words “b) verification of out-of-state employment relating to a sexually oriented business or” and before the words “a sexually oriented business license/permit or similar business” Section 62. Section 6.54.070(C)(7) of the MCL is amended by deleting the word “any” after the words “or his/her refusal or failure to appear at” and before the words “reasonable time and place for examination under oath”. Section 63. Section 6.54.070(D)\(3) of the MCL is amended by adding the letter “B” between “6.54.150” and the number “10”. Section 64. Section 6.54.070(D)(4) of the MCL is amended by deleting the letter “A” at the end of the paragraph and substituting in lieu therefore the letter “B”. Section 65. Section 6.54.080(A)(2) of the MCL is amended by deleting the words “or any crime involving moral turpitude” after the words “No applicant convicted App. 139 of a crime of a sexual nature, as defined in 6.54.010,” and before the words “in any jurisdiction shall be eligible to receive” Section 66. Section 6.54.080(A)(2)(b) of the MCL is amended by deleting the words “or plea” after the words “If the conviction” and before the words “was for a felony violation” Section 67. Section 6.54.080(A\(3) of the MCL is amended by adding the words “False or misleading infor- mation does not mean any information which the appli- cant had reason to believe was correct” at the end of the paragraph. Section 68. Section 6.54.080(/A\(3)(a) of the MCL is amended by deleting the words “or any crime involving moral turpitude” at the end of the paragraph. Section 69. Section 6.54.080(A)(3\(c) of the MCL is amended by deleting the words “or any crime involving moral turpitude” after the words “If the misleading state- ments or omissions referred to a crime of a sexual nature, as defined in 6.54.010” and before the words “then the applicant shall not be eligible to receive a permit” Section 70. Section 6.54.080 is amended by adding a subsection “4” which shall read as follows: 4. The applicant shall not have had a sexu- ally oriented business permit/license or similar business permit revoked within the last year immediately preceding the application. Section 67. Section 6.54.090(C) is amended by delet- ing the words “turned into the board” and substituting in App. 140 lieu therefore the words “returned to the board and cease to be valid.” at the end of that subsection. Section 71. Section 6.54.100 of the MCL is amended by deleting the section in its entirety and substituting the following in lieu therefore: B. The permit shall be carried by or be accessi- ble to the entertainer during that entertainer’s working hours and shall be displayed upon re- quest of any member of the police department, health inspector, or board jaspector. Section 72. Section 6.54.110(F) of the MCL is amended by adding the following to the end of the para- graph: The renewal must also include an updated back- ground check by the police department and an updated 2X2 photo. The renewal does not require resubmission of fingerprints submitted with the initial application. However, if new or additional persons are involved in the day to day operation of the licensed business those persons must sub- mit fingerprints as described above. Section 73. Section 6.54.110(K) of the MCL is amended by deleting this subsection in its entirety and substituting the following in lieu therefore: K. The application for a renewal is subject to the same rules and limitations as the initial application. Section 74. Section 6.54.120(B) of the MCL is amended by deleting the word “fire” and substituting in lieu therefore the words “board inspector” after the words “the following departments: police, codes,” and before the words “and health” at the end of the paragraph. App. 141 Section 75. Section 6.54.130(A) of the MCL is amended by deleting the word “or” after the words “opera- tor’s license shall be revoked, suspended” and before the word “renewed” and by adding the words “or penalty assessed” after the word “renewed” and before the words “subject to the limit described in Section 6.54.150(C)” and by deleting the word “limit” and substituting in lieu therefore the word “limits” after the words “subject to the” and before the words “described in Section 6.54 150(C)” at the end of that subsection and by deleting the code section “6 54 130(C)” and substituting in lieu therefore “6.54.120(E)” Section 76. Section 6.54.130(B) of the MCL is amended by deleting the subsection in its entirety and re-lettering the subsections accordingly. Section 77. Section 6.54.130(C) of the MCL is amended by adding the words “on the premises of a licensed business,” at the end of the paragraph. Section 78. Section 6.54.130(D) of the MCL is amended by deleting the words “cubicles, rooms or stalls” after the words “the entire interior portion of the booths” and before the words “wherein sexually oriented enter- tainment is provided, shall be visible” and by deleting the words “cubicles, rooms or stalls” after the words “Further, any wall forming any portion of the booths,” and before the words “shall be solid and without any openings, extended from the floor to a height of not less than six feet.” Section 79. Section 6.54.130(E) of the MCL is amended by combining 6.54.130(E) and 6.54.130(F) and renumbering the remaining sections accordingly. App. 142 E. It is unlawful to install enclosed booths for the purpose of viewing of sexually oriented mo- tion pictures, sexually oriented movies, sexually oriented films, sexually oriented videos. The li- censee shall be responsible for and shall provide that any booth used for the purpose of viewing sexually oriented motion pictures, sexually ori- ented movies, sexually oriented films or sexually oriented videos shall be readily accessible at all times and shall be continuously open to view in its entirety. Section 80. Section 6.54.130(G) of the MCL is amended by amending the wording for the required signage by deleting the words “entertainer or” appearing after the words “which provides that” and before the words “Customer shall be permitted. Section 81. Section 6.54.130(H) of the MCL is amended by deleting the section in its entirety and substi- tuting the following in lieu therefore: It shall be the duty of the operator, to ensure that the line of sight and view area between the common area and any booths remain unob- structed by any doors, walls, merchandise, dis- play racks or other materials at any time that any patron is permitted access to any booth. En- tertainers and employees, on the premises for furthering the business, not including independ- ent contractors on the premises for repairs or construction, shall not place any obstructions in front of any booths at any time any patron is permitted access to any booth. Section 82. Section 6.54.130(1) of the MCL is amended by deleting the words “stalls or cubicles” after the words “to ensure that the illumination in booths” and App. 143 before the words “described in Section 6.54.050(A)(1)(b)(iv) is maintained at all times” and by deleting the code section “6.54.050(A)(1)(b)iv)” and substituting in lieu therefore “6.54.050(A)( 1) bv)”. Section 83. Section 6.54.130(J) of the MCL is amended by deleting the section in its entirety and substi- tuting the following in lieu therefore: No operator, shall allow openings of any kind to exist between booths, and no person, including entertainers and employees shall make or at- tempt to make an opening of any kind between any booths. Section 8&4. Section 6.54.130(K) of the MCL is amended by deleting the section in its entirety and substi- tuting the following in lieu therefore: The operator or his/her designee shall, during each business day, regularly inspect the walls be- tween the booths, to determine if any openings or holes exist. If such openings exist it is the duty of the operators to repair the damage as soon as possible. No patron shall be permitted access to a booth, where an opening or a hole exists. It shall be the duty of the operator to ensure those booths are unoccupied by patrons until the opening is repaired or covered. Section. 85. Section 6.54.140(A) of the MCL is amended by adding the words “on the premises for fur- thering the business, not including independent contrac- tors on the premises for repairs or construction,” after the words “No operator, entertainer or employee” and before the words “of a sexually oriented business shall permit to be performed,’. App. 144 Section 86. Section 6.54.140(B) of the MCL is amended by adding the words “on the premises for fur- thering the business, not including independent contrac- tors on the premises for repairs or construction,” after the words “No operator, entertainer or employee” and before the words “shall encourage or permit any person upon the premises to touch”. Section 87. Section 6.54.140(C) of the MCL is amended by deleting the section in its entirety and substi- tuting the following in lieu therefore: No customer shall be permitted to have any physical contact with any entertainer on the li- censed premises while the entertainer is engaged in a performance of live sexually oriented enter- tainment. All performances of live sexually ori- ented entertainment shall only occur upon a stage at least eighteen inches above the immedi- ate floor level and removed at least three feet from the nearest customer. Section 88. Section 6.54.150 of the MCL is amended by deleting the section in its entirety and substituting the following in lieu therefore. 6.54.150 Revocation or suspension of license/permit. A. The board shall revoke a license for any of the following reasons: 1. Discovery that false or misleading in- formation or data was given on an applica- tion, or material facts were omitted from an application. False or misleading information does not mean any information which the applicant reasonably believed was correct; App. 145 2. The licensee was or has become ineligible to obtain a license under Section 6.54.050(B); 3. Any cost or fee required to be paid by this chapter is not paid; 4. The licensee knowingly employs, or with due diligence, should have known that licen- see was employing, an entertainer who does not have a permit. The licensee knowingly provides, or with the exercise of due dili- gence should have known that he/she was providing, space on the premises whether by lease or otherwise to an independent con- tractor who performs or works as an enter- tainer without a permit; 5. The licensee sells, furnishes, gives, dis- plays, or causes to be sold, furnished, given or displayed to any minor any sexually ori- ented entertainment or sexually oriented material on the licensed premises. The li- censee knowingly allows, or thorough the exercise of due diligence should have been able to prevent, the licensee’s employee, who is on the premises furthering the business of the licensee, from selling, furnishing, giving, displaying, or causing to be sold, furnished, given or displayed to any minor any sexually oriented entertainment or sexually oriented material on the licensed premises. The licensee knowingly allows, or thorough the exercise of due diligence should have beer able to prevent, an entertainer to sell, furnish, give, display, or cause to be sold, furnished, given or displayed to any minor any sexually oriented entertainment or App. 146 sexually oriented material on the licensed premises; 6. The licensee knowingly denies, or thorough the exercise of due diligence should have know that he/she was denying, access to law enforcement personnel during business hours to any portion of the licensed premises wherein sexually oriented enter- tainment is permitted or to any portion of the licensed premises wherein sexually ori- ented material is displayed or sold. The licensee knowingly allows, or thorough the exercise of due diligence should have been able to prevent, his/her employee, who is on the premises furthering the business of the licensee, to deny access to law enforce- ment personnel during business hours to .any portion of the licensed premises wherein sexually oriented entertainment is permit- ted or to any portion of the licensed prem- ises wherein sexually oriented material is displayed or sold. The licensee knowingly allows, or thorough the exercise of due diligence should have been able to prevent an entertainer to deny access to law enforcement personnel during business hours to any portion of the licensed premises wherein sexually oriented enter- tainment is permitted or to any portion of the licensed premises wherein sexually ori- ented material is displayed or sold; 7. The attempted transfer of a license or any interest in a license; App. 147 8. Ifan application for a license or a renewal of a license was denied and that admnnistra- tive denial was appealed and upheld by a court after adjudication on the merits then that license shall be revoked on the effective date of the court’s judgement. 9. The licensee fails to maintain the li- censed premises in a sanitary and safe con- dition by allowing continuing violations of Chapter 6.54. A continuing violation shall mean more than two judgements from the board, unless the decision of the board is appealed and over- turned, that the licensee violated Chapter 6.54 within a 24 month period, not including any period of suspension. The fact that a the board’s judgment is being appealed shall have no affect on the determination that the violation has been continuing until such time as the judgment of the board is re- versed. . The licensee may affirmatively prove as a defense to an alleged violation of Chapter 6.54 that the licensee did not know, or through the exercise of due diligence could not have known that his/her employees’ acts or an entertainer’s acts would violate Chap- ter 6.54. If the licensee knew or should have known that his/her employees’ acts or an en- tertainer’s acts were violating any subsec- tion of Chapter 6.54, the licensee may still affirmatively prove as a defense to the viola- tion that the licensee was powerless to pre- vent the continuing unsafe or unsanitary condition. App. 148 10. Continuous violations of TCA § 57-4- 204 or Metropolitan Code § 7.24.030. Continuous violations shall mean that the licensee had more than two judgements en- tered against him/her for violating TCA § 57-4-204 or Metropolitan Code § 7.24.030 within a twenty-four month period, not in- cluding periods of suspension. The fact that the trial court’s judgement is being appealed shall have no effect on the revocation until such time as the judgement of the trial court is reversed B. The board shall either fine, suspend or fine and suspend a license for any of the following reasons, that are not sufficient grounds for revo- cation: 1. The licensee fails to maintain the li- censed premises in a sanitary or safe condi- tion by allowing a violation of Chapter 6.54, T.C.A. Section 57-4-204 or Metropolitan Code Section 7.24.030. The licensee may affirmatively prove as a defense to an alleged violation of Chapter 6.54, T.C.A. Section 57-4-204 or Metropoli- tan Code Section 7.24.030 that he/she did not know, or through the exercise of due diligence could not have known of his/her employee’s acts or omissions or an enter- tainer’s act or omissions. If the licensee knew or should have known that his/her employee or an entertainer was violating any such subsection of Chapter 6.54, T.C.A. Section 57-4-204 or Metropolitan Code Sec- tion 7.24.030, the licensee may still affirma- tively prove on a defense to the alleged App. 149 violation that he/she was powerless to pre- vent the unsafe or unsanitary condition. 2. Upon the first violation of Chapter 6.54. T.C.A. Section 57-4-204 or Metropolitan Code Section 7.24.030 within a 24 month period, not including periods of suspensions, the license shall either be fined $500 or his/her licensee shall be suspended for a pe- riod no less than five (5) days and no longer than thirty (30) days or the licensee shall be both fined $500 and his or her license sus- pended for a period of not less than five (5) days and no longer than thirty (30) days. 3. Upon the second violation of Chapter 6.54, T.C.A. Section 57-4-204 or Metropoli- tan Code Section 7.24.030 within a 24 month period, not including periods of sus- pensions, the license shall be suspended no less than thirty-one (31) days and no longer than ninety (90) days. . A second violation of Chapter 6.54, shall mean a prior judgement from the board, unless the decision of the board is appealed and overturned, that the licensee violated Chapter 6.54 within a 24 month period not including any period of suspension. The fact that a the board’s judgment is being ap- pealed shall have no affect on the determi- nation that the violation occurred previously until such time as the judgment of the board is reversed. A second violation of T.C.A. Section 57-4-204 or Metropolitan Code Section 7.24.030 shall mean a judgment from a trial court that the license violated T.C.A. Section 57-4-204 or App. 150 Metropolitan Code Section 7.24.030. The fact that a trial court’s judgment is being appealed shall have no affect on the suspen- sion and the judgment shall be treated as a violation until such time as the judgment of the trial court is reversed. C. The board shall revoke a permit for any of the following reasons: - 1. Discovery that false or misleading in- formation or data was given on any applica- tion, or material facts were omitted from any application. False or misleading infor- mation does not mean any information which the applicant reasonably believed was correct; 2. The permittee has become ineligible to obtain a permit under 6.54.080(A); 3. Any cost or fee required to be paid by this chapter is not paid; 4. The permittee provides sexually ori- ented entertainment on the premises of an operator who he/she knows, or with the ex- ercise of due diligence should have known, does not have a license; 5. The permittee knowingly, or with the exercise of due diligence should have known that he/she, sells, furnishes, gives, displays, or causes to be sold, furnished, given or dis- played to any minor any sexually oriented entertainment or sexually oriented material on the premises; 6. The permittee knowingly denies, or through the exercise of due diligence should have known that he/she was denying, access ED D. App. 151 to law enforcement personnel during busi- ness hours to any portion of the licensed premises wherein sexually oriented enter- tainment is permitted or to any portion of the licensed premises wherein sexually ori- ented material is displayed or sold; 7. The permittee attempted to transfer his/her permit or any interest in his/her permit to someone else; 8. The application for a permit or the ap- plication for the renewal of a permit was de- nied and that administrative denial was appealed and upheld by a court after adjudi- cation on the merits; 9. The permittee repeatedly fails to comply with the provisions of Chapter 6.54. Repeat- edly fails to comply shall mean that the permittee has been found by the board to have violated Chapter 6.54 more than twice within a period of twenty-four (24) months, not including any period of suspension. The fact that the board’s judgment is being ap- . pealed shall have no affect on the determi- nation that the permittee has repeatedly failed to comply until such time as the judgment of the board is reversed. The board shall suspend a permit for any of the following reasons that are not grounds for revocation: 1. The permittee violates Chapter 6.54, T.C.A. Section 57-4-204 or Metropolitan Code Section 7.24.030. 2. Upon the first violation of Chapter 6.54, T.C.4. Section 57-4-204 or Metropolitan App. 152 Code Section 7.24.030 within a twenty-four (24) month period, not including periods of suspensions, the permittee shall either be fined $500 or his or her permittee shall be suspended for a period no less than five (5) days and no longer than thirty (30) days or the permittee shall be both fined $500 and his or her permit suspended for a period of no less than five (5) days and no longer than thirty (30) days. Upon the second violation of Chapter 6.54, T.C.A. Section 57-4-204 or Metropolitan Code Section 7.24.030 within a 24 month period, not including periods of suspensions, the permit shall be suspended no less than thirty-one (31) days and no longer than ninety (90) days. E. The board shall follow the following proce- dure for revoking or suspending a license or a permit. 1. Before revoking or suspending any li- cense or permit the board shall give the op- erator or entertainer five days’ written notice of the alleged violation(s) against him/her. In such cases the charges shall be specific and in writing except under 6.54.150(A)(7), (8) and 6.54.150(C)(7), (8) of this section. j 2. The board shall hear all the evidence per- taining to the revocation or suspension at the next regular meeting. The next meeting shall be held no later than fifteen days after the notice described above is mailed. The licensee/ permittee may present evidence bearing upon the question of suspension/revocation. App. 153 3. If the licensee/permittee fails to appear at the hearing before the board he/she wil] have waived the right to present evidence to the board on the citation. This has no effect, whatsoever, on the licensee’s/permittee’s right to appeal any revocation to the chancery court of Davidson County. 4. If the licensee/permittee requests a hearing, the license/permit shall remain in effect and valid during the appeal to the board until such time as the hearing is held. 5. Any adverse administrative decision to suspend or revoke a license/permit that is appealed to the circuit or chancery courts of Davidson County shall not take effect until that administrative decision has been up- held by the court after adjudication on the merits. Adverse decisions of the board which are not appealed shall not take effect for sixty (60) days from the date of the decision to allow the affected party time to seek judi- cial review. . 6. The revocation/suspension of a li- cense/permit may be appealed to the circuit or chancery courts of Davidson County by the licensee/permitee. The metropolitan de- partment of law may initiate proceedings for a declaratory judgment in the circuit or chancery court for Davidson County. If the permittee/licensee chooses to appeal by fil- ing a petition for a writ of certioran, then the metropolitan government shall file the record of all proceedings with the court within seven days from the grant of the writ of certiorari. App. 154 F. Any operator or entertainer whose license or permit is revoked shall not be eligible to re- ceive a license or permit for one year from the date of revocation. (Amdt. 7 (part) with Ord. 97-796 § 2 (part), 1997) Section 89. Section 6.54.160(2) of the MCL is amended by deleting the reference to § 6.54.150(B)” and substituting in lieu therefore “6.54.150(B) or(D)”. - Section 90. Section 6.54.160(3) of the MCL is amended by deleting the reference to “6.54.150(A)” and substituting in lieu therefore “6.54.150(A) or (C)” Section 91. This Ordinance shall take effect from and after its passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it. APPROVED AS TO FORM INTRODUCED BY: AND LEGALITY: /s/ Shayna Abrams /s/ Chris Ferrell Metropolitan Attorney Members of Council Amendment No. 1 to Substitute Ordinance 99-1503 Mr. President, I move to amend Substitute Ordinance 99-1503 as follows: Section 1. Amend Section 2 of SO99-1503 amending section 6.54.010 of the Metropolitan Code of Nashville and App. 155 Davidson County (“MCL”) by deleting Section 2 in its entirety and substituting the following therefore: Section 2. Section 6.54.010(C) “Crimes of a sex- ual nature” of the MCL is amended by adding the words “public indecency” after the words “means the crimes of rape, aggravated rape, aggravated sexual assault,” and before the words “statutory rape, rape of a child, sexual exploitation of a mi- nor, indecent exposure,”. Further 6.54.010(H) is amended by deleting the reference to “39-15-511” and substituting in lieu therefore the reference “39-13-511”. Further 6.54.010(S) is amended by adding a new subsection “S” and renumbering the remaining subsections. The new subsection “S” shall read: S. “Public Indecency” means as defined in the Tennessee Code Annotated Section 39- 13-511. Further 6.54.010(W) of the MCL is amended by deleting the definition of “Sexually oriented” in its entirety and substituting the following in lieu therefore: W. “Sexually oriented” means any exhibi- tion of any motion pictures, films, or videos depicting “specified sexual activities” or “specified anatomical areas” or any live per- formance, display or dance of any type, re- moval of articles of clothing or appearing unclothed, pantomime, modeling, or any other personal service offered customers a significant or substantial portion of which depicts any actual or simulated performance of “specified sexual activities” or exhibition and viewing of “specified anatomical areas.” App. 156 Section 2. Amend Section 12 of SO99-1503 amending Section 6.54.040(A)(5)(e) of the MCL by deleting Section 12 in its entirety and substituting the following therefore: Section 12. Section 6.54.040(A)(5)(e) of the MCL is amended by deleting it in its entirety and sub- stituting the following in lieu therefore: f. All convictions for crimes of a sexual nature, as defined in Section 6.54.010, punishable as a misdemeanor violation that have occurred within the past two years. All convictions for crimes of a sexual nature, as defined in Section 6.54.010, punishable as a felony that have occurred within the past five years. Section 3. Amend Section 23 of SO99-1503 amending section 6.54.040(C)(7) of the MCL by deleting Section 23 in its entirety and substituting the following therefore: Section 23. The first sentence of 6.54.040(C)(7) shall be amended by renumbering the subsection as subsection “9” and by deleting the first sentence in its entirety and substituting the following in lieu there- _ fore: 9. Within fifteen days of receiving the re- sults of the investigation conducted by the police department, and inspection reports from the codes department, and health de- partment, if the board shall determine that the applicant is not in compliance with this code section, the zoning code or the applica- ble health statutes, ordinances and regula- tions, the applicant shall be notified in writing, the next business day, that the li- cense is denied for failing to comply with applicable statutes, ordinances and regula- tions. App. 157 Section 4. Amend Section 57 of SO99-1503 amending section 6.54.070(A)(4\g) of the MCL by adding the following language to Section 57: “Further Section 6.54.070(A)(4\g) is amended by deleting the word ‘portrait’ after the words ‘Fingerprints and two’ and before the words ‘photographs at least two inches by two inches’ in the first sentence.” Section 5. Amend Section 59 of SO99-1503 by delet- ing Section 59 in its entirety and substituting the follow- ing: Section 59. Section 6.54.070(C)(1) of the MCL is amended by deleting this section in its entirety and substituting the following in lieu therefore and re- numbering the following paragraphs sequentially. 1. Within fifteen days of receiving the re- sults of the investigation conducted by the police department the board will meet and determine if the applicant has not been con- victed of a crime of a sexual nature, as de- fined in 6.54.010, has not had a similar type of permit/license revoked in the last two years is at least eighteen years of age, and has not given any false or misleading infor- mation on the application or omitted any material facts from the application then the board shall grant the permit. False or mis- leading information does not include infor- mation which the applicant reasonably believed, after exercising due diligence, was correct at the time of the application. 2. Ifthe board fails to meet within the time period specified, or fails to have a quorum at the meeting, then the permit shall be deemed approved and sent to the applicant App. 158 by United States Mail to the address listed on the application. Section 6. Amend Section 61 of SO99-1503 amending 6.54.070(C (5) of the MCL by adding the following to the end of section 61: Further 6.54.070(C)(5) is amended by deleting the last sentence of that paragraph and substi- tuting in lieu thereof the following sentence: False or misleading information does not in- clude information which the applicant reason- able believed, after exercising due diligence, was correct at the time of the application. Section 7. Section 63 of SO99-1503 amending 6.54.070(D) of the MCL is amended by adding this sentence at the end of section 63: Section 6.54.070(D)(1\c) of the MCL is amended by deleting the last sentence of the paragraph and substituting in lieu thereof the following sen- tence: Failing to appear before the board will not preclude the applicant’s right to appeal any denial to the circuit or chancery courts of Davidson County. Section 8. Section 68 of SO99-1503 amending 6.54.080(/A)(3)(a) is amended by adding the following sentences at the end of Section 68: Section 6.54.080(A)(3)a) of the MCL is further amended by deleting the last sentence of the paragraph and substituting in lieu thereof the following sentence: App. 159 False or misleading information does not in- clude information which the applicant rea- sonably believed, after exercising due diligence, was correct at the time of the ap- plication. Section 68 of SO99-1503 is further amended by adding . the following sentence: Section 6.54.080(A)(3)(b) and (c) of the MCL is amended by deleting the word “longer” at the end of the both paragraphs and substi- tuting in lieu therefore the word “later”. Section 9. Section 73 of SO99-1503 amending Sec- tion 6.54.110 is amended by adding the following as the first sentence of Section 73: Section 6.54.110(L)(3) of the MCL is amended by deleting the last sentence of the paragraph in its entirety and substituting in lieu thereof the fol- lowing sentence: Failing to appear before the board will not preclude the applicant’s right to appeal any denial to the circuit or chancery courts of Davidson County. Section 10. Section 78 of SO99-1503 amending Section 6.54.130(D) is amended by adding the following as the first sentence of Section 78: Section 6.54.130(D) of the MCL is amended by deleting the first sentence of the paragraph in its entirety and substituting in lieu thereof the fol- lowing sentence: Every sexually oriented business shall be physically arranged in such a manner that the entire interior portion of any booths, App. 160 wherein sexually oriented motion pictures, sexually oriented movies, sexually oriented films or sexually oriented videos are viewed, shall be visible from the common area of the premises having at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying same. Section 11. Section 88 of SO99-1503 is amended by deleting the amended language of Section 6.54.150(A)(1) in its entirety and substituting the following Section 6.54.150(A)(1): (A)(1). Discovery that false or misleading in- formation or data was given on an application, or material facts were omitted from an application. False or misleading information does not include information which the applicant reasonably be- lieved, after exercising due diligence, was correct at the time of the application; Section 12. Section 88 of SO99-1503 is further amended by deleting the amended language of Section 6.54.150(C)(1) in its entirety and substituting in lieu thereof the following Section 6.54.150(C)(1): (C)(1). Discovery that false or misleading in- formation or data was given on any application, or material facts were omitted from any applica- tion. False or misleading information does not include information which the applicant rea- sonably believed, after exercising due diligence, was correct at the time of the application Section 13. Section 88 of SO99-1503 is further amended by deleting the last sentence of the amended App. 161 language in Section 6.54.150(E)(3) and substituting the following in lieu thereof: Failing to appear before the board will not pre- clude the licensee’s/permittee’s right to appeal any revocation/suspension to the chancery court of Davidson County. Section 14. SO99-1503 is further amended by adding a new Section numbered “92” which shall read as follows: Section 92. Section 6.54.020(F) of the MCL is amended by adding the word “civil” after the words “which inspectors shall not hold any” and before the words “service status.” INTRODUCED BY: /s/ Chris Ferrell Member of Council - ADOPTED: February 16, 1999 App. 162 ORDINANCE NO. 099-1814 An ordinance to amend Title 6, Chapter 8.54 of the Metropolitan Code of Laws concerning sexually oriented businesses. Now therefore, be it enacted by the Metropolitan Council of Nashville and Davidson County as follows. Section 1. Sections 6 54 010 is amended by adding a definition for the term “Booth” which shall be incorporated into the definitions in accordance with the definitions alphabetical organization and re-lettering any subsequent definitions accordingly “Booth” means any booth, cubicle, stall, room or compart- ment which is designed, constructed or used to hold or seat patrons/customers and is designed such that the booth is separated from the common area or the premises and is used for presenting sexually oriented entertainment including, but not limited to viewing sexually oriented moving pictures or viewing sexually oriented publications by any photographic, electronic, magnetic, digital or other means or medium (including, but not limited to, film video or magnetic tape, laser disc, cd-rom, books, magazines or periodicals) for observation by patrons therein “Booth” shall not mean a room or enclosure that is designed, constructed and regularly used to seat more than ten persons Section 2. Section 6.54 010(O) of the MCL is amended by deleting the definition of “Operator” in its entirety and substituting the following in lieu therefore. “Operator” means any person, partnership, limited part- nership, joint venture, corporation or any other type of App. 163 business entity operating, conducting or maintaining a sexually oriented business Section 3. Section 6 54.010(X) of the MCL is amended by amending the definition of “Sexually oriented” by insert- ing a (1) after the word “means” and before the words “any exhibition” and by inserting a (2) after the word “or” and before the words “any live performance” Section 4. Section 6.54.010(Y) of the MCL is amended by amending the definition of “Sexually oriented business establishment” by deleting the last sentence. Section 5. Section 6.54.010(Y)(3) of the MCL is amended by amending the definition of “Sexually oriented theatre” by deleting the word “building” after the word “enclosed” and before the word “regularly” and inserting in heu thereof the words “area, not including a booth”. Section 6 Section 6 54 020(C) of the MCL is amended by adding the following sentence at the end of the paragraph. “The vice-chair is authorized to act in the place of the chair and in the same capacity as the chair when the chair is unavailable” Section 7. Section 6 54 020 (D)(2) of the MCL is amended by deleting this subsection in its entirety and substituting in lieu therefore the following “A quorum shall mean that two members of the board are present at the meeting A quorum is required for the purpose of transacting busi- ness” Section 8 Section 6 54 030(B) of the MCL is amended by deleting this subsection in its entirety and substituting in lieu therefore the following App. 164 B Any person, partnership, limited partnership, joint venture, corporation or any other type of business entity which desires to operate more than one sexually oriented business/establishment must have a license for each sexually oriented business/establishment Section 9 Section 6 54 040(A)(1) of the MCL is amended by deleting the first sentence in its entirety and substitut- ing in lieu therefore “Any person, partnership, joint venture corporation or any other type of business entity desiring to secure a license shall make application to the board.” Section 10. Section 6.54.040(A)(4) is amended by deleting this subsection in its entirety and substituting the follow- ing in lieu therefore The following persons must be listed in the license appli- cation for any sexually oriented business that is a corpo- rate entity of any kind the registered agent and the name and address of all officers and directors of the corporation and any stockholder holding a majority controlling per- centage of the stock of a corporate applicant and who will be involved in the day-to-day operation and management of the business The following person must be listed in the license application for any sexually oriented business that is a partnership, limited partnership, joint verdure, or any other type of business the name and address of all persons who will be involved in the day-to-day operation and management of the business. Section 11 Section 6 54 O040(A)(5)\(c) of the MCL is amended by deleting this subsection in its entirety and substituting in lieu therefore App. 165 Whether the applicant previously operated in this or any other county, city or state under a sexually oriented business/adult entertainment license/permit Whether the applicant has ever had such a license/permit revoked or suspended within the last year from the date of applica- tion the reason therefor, and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation Section 12 Section 6 54 040(A)(5)\(f) is amended by deleting the subsection in its entirety and enacting a new subsection (f) as follows All Judgements by a court within one year for violations of the metropolitan zoning Section 167 64 260 Section 13. Section 6 54.040(A)(5)(k) of the MCL is amended by deleting the subsection in its entirety and substituting the following in liev therefore k A statement by the applicant that he/she is familiar with the provisions of this chapter and a statement swearing that information provided on the application is true and accurate Section 14. Section 6 54 040(A)(6) is amended by deleting the subsection and adding a new subsection as follows The applicant shall provide the board with his/her applica- tion, a diagram, drawn to scale of the premises, including the location and layout of all booths and stages and the location of the clerk/manager’s stand or counter Though the diagram shall be drawn to scale, it does not have to be professionally prepared App. 166 Section 15 Section 6.54.040(A) is amended by adding a new subsection as follows If any of the information on the application changes over the course of the time the license is issued, including any changes in the physical layout of the premises, the licen- see shall inform the board, in writing, of the changee Section 16. Section 6 54 040(B)(1) is amended by adding the words and figures “6.54 050 (A)(3) and 6.54 130(C)” after-the numbers “6 54 050(A)(1) and before the words “of this chapter” in the first sentence Section 6 54.040(B)(1) of the MCL is further amended by deleting the last sentence of that paragraph and substituting in lieu therefore the following: Any inspection or investigation information not filed with the board in the time period specified shall not prevent the applicant from receiving the license and shall be treated by the board as if the report revealed no violations of applicable statutes ordinances, or regulations, no viola- tions of the provisions of this chapter, no sexually oriented business/adult entertainment zoning code violations and/or no applicable criminal history Section 17 Section 6.54.040(B)\(2) of the MCL is amended by deleting the subsection in its entirety and enacting a new subsection as follows. The code department shall confirm that any booths or stages conform with the submitted diagram and the requirements set out in Sections 6.54.050(A) and 6 54 130 Section 18 Section 6.54 040(C)(1) is amended by deleting the word “code section” before the words “and the applica- ble health statutes” and after the words “applicant is in App. 167 compliance with this” and substituting in lieu therefore the word “chapter”. Section 19 Section 6 54 040(C)(2) is amended by adding the words “this chapter” after the words “If the board determines that the applicant is in compliance with” and before the words “the applicable health statutes, ordi- nances and regulations,” Section 20 Section 6 54 040(C)(3) of the MCL is amended by deleting it 1n its entirety and substituting the following in lieu therefore 3. If the board fails to meet within the specified time period, fails to have a quorum, or fails to take action on the application within the specified time period then the license shall be deemed approved and sent to the applicant by United States Mail to the address listed on the applica- tion within two (2) days of the events described in this paragraph. Section 21 Section 6.54.040(C)(4) of the MCL is amended by deleting the words and figures “Section 6 54 050(B)(2)” before the words “such denial” and substituting the words “the provision of this chapter Section 22. Section 6.54 040(C)(5) of the MCL is amended by deleting the word “until the judgement is reversed” in the last sentence of the section and substituting the words “unless the judgement is stayed” Section 23 Section 6 54.040(C)(7) of the MCL is amended by deleting the words “a diagram is required under sub- section (A)(6) of this section and based or the code inspec- tion” at the beginning of the first sentence and is further amended by adding the word and numbers “or 6 54 130 before the words “or the submitted diagram” App. 168 Section 24 Section 6.54.040(C)\(9) of the MCL is amended by deleting the words “code section” and substituting in lieu therefore the word “chapter” after the words “if the board shall determine that the applicant is not in compli- ance with this” and before the words “the zoning code or the applicable health statutes, ordinances and regula- tions” Section 25. Section 6.54.040(C)(11) of the MCL is amended by deleting the last sentence of the section Section 26 Section 6 54 040(D)(1) of the MCL is amended by deleting the words “under subsection (C)(5) or (C)(7) of this section” after the word “denied” and before the words “the applicant may reinstate” Section 27 Section 6 54 040(D)(1)(a) of the MCL is amended by deleting the words “described in subsection (C)\(5) or (C\(7) of this section” after the word “denial” and before the words “to cure the violation” Section 28. Section 6.54.040(D)(1)\(e) of the MCL is amended by deleting the following words at the end of the subsection, “in accordance with subsection (C)(5) or (C)(7) of this section” and by deleting the word “is” and substitut- ing in lieu therefore the words “will be” after the words “code violations have not been corrected, then the applica- tion” and before the word “denied” at the end of that subsection. Section 29 Section 6 54 040(D)(2) of the MCL is amended by deleting the following words at the end of the subsec- tion, “in accordance with subsections (C)(5) (C7) or (D)(3) of this section” Section 30. Section 6.54.040(D)(2)(a) of the MCL is amended by deleting the word “five” and substituting the App. 169 word “fifteen” and by deleting the following words at the end of the subsection,.“described in subsection (C)(5) or (C)(7) of this section Section 31 The last sentence of Section 6 54.040(D)(3) of the MCL is amended by adding the word “initial” after the words “an extension of time have passed, the” and before the word “den:al” and by deleting the words “described in subsections (C)(5) and (C)(7) of this section” after the word “denial” and before the words “shall be treated as a denial of the application” Section 32. Section 6.54.040(E)(1) is amended by adding a new subsection f If the board fails to meet within the specified time period, fails to have a quorum, or fails to take action on the application within the specified time period then the license shall be deemed approved and sent to the applicant by United States Mail to the address listed on the applica- tion within two (2) days of that specified time period Section 33. Section 6.54.050(A)(1)(c) of the MCL is amended by deleting the section Section 34. Section 6.54.050(A) is amended by adding a new subsection as follows: 3. Any live performance of sexually oriented entertain- ment shall occur upon a stage at least 18 inches above the immediate floor level and removed at least 3 feet from the nearest customer A three foot boundary from the outer edge of the stage shall be indicated on the floor by a rail barrier, lighting, luminous tape or paint, or any other method which will make the boundary visible in a dark- ened condition so that the customer will not invade the 3 App. 170 foot boundary from the stage with any portion of his/her body Section 35. Section 6 54 050(B) of the MCL is amended by deleting paragraph 6 in its entirety and substituting the following, 6 Any applicant found to have previously violated this chapter by operating or maintaining a sexually oriented business/establishment within the metropolitan area without a license, as evidenced by a judgement of a court, within one year immediately preceding the date of the application shall be ineligible for a license for one year from the date of the judgement The fact that a trial court’s judgement is being appealed shall have no effect on the disqualification of the applicant unless the judgement is stayed Section 36 The last sentence of Section 6 54 050(B) is amended by deleting the word “permitted” and substitut- ing in lieu therefore the word “described” after the words “until a permit is granted except as” and before the words “in Section 6.54.070(D)(4)” Section 37 Section 6 54 060 is amended by adding a new subsection as follows C Any entertainer found to have violated this chapter by providing sexually oriented entertainment in a sexually oriented business/establishment in the metropolitan area without a permit as evidenced by a judgement of a court within one year immediately preceding the date of the application shall be ineligible for a license for one year from the date of the judgement. The fact that a trial court’s judgement is being appealed shall have no effect on App. 171 the disqualification of the applicant unless the judgement is stayed Section 38 Section 6.54 070(A)(2)(a) of the MCL is amended by adding the word “his” before the words “her application, including one of the two photos to the police department” after the words “The police department may be notified of a need for a background check in two ways The applicant brings” and further adding the word “his” before the words “her fingerprints taken at the police department” and after the words “including one of the two photos to the police department and has” Section 39 Section 654070(A)\(2)(b) of the MCL is amended by deleting the words “or other qualified person,” at the end of that subsection and further amended by adding the following at the end of the section If the applicant intends to mail his/her application to the board then he/she shall have his/her local law enforcement agency take his/her fingerprints and photograph and that law enforcement agency shall mail the fingerprints di- rectly to the Metropolitan Police Department. Section 40. The first full sentence of Section 6.54 O070(A)\(2)(c) of the MCL is amended by adding the word “his” after the words “Fees If the applicant brings” and before the words “her application to the police department,” and further by deleting the second to last sentence in its entirety and substituting the following sentence This same procedure applies if the applicant has his/her fingerprints and photographs taken by their local law enforcement agency and mailed directly to the Metropolli- tan Police Department App. 172 Section 41. Section 6.54 070(A)(4)(e) is amended by deleting the paragraph in its entirety and substituting in lieu therefore the following. Whether the applicant previously entertained in this or any other county, city or state under a sexually oriented business license/permit or similar business license/permit within the last year For whom the applicant was employed or associated at the time Whether the applicant has had such a license/permit revoked or suspended within the last year and the reason therefor and the business entity or trade name for whom the applicant was employed or associated at the time of such suspension or revocation. Section 42 Section 6.54 070(A)(4)(h) of the MCL is amended by deleting the subsection in its entirety and substituting the following in lieu therefore A statement by the applicant that he/she is familiar with the provisions of this chapter and a statement swearing that information provided on the application is true and accurate Section 43. Section 6.54 070(B) of the MCL is amended by deleting the words “either by performing these func- tions or by reviewing these items which were provided by the applicant” before the words “and by performing a background investigation for crimes of a sexual nature” and after the words “fingerprints and 2 x 2 photo” and is further amended by deleting the words and numbers “Subject to Section 6 54 150” Section 44. Section 6.54 070(C)(1) is amended by deleting the first sentence in its entirety and substituting in lieu therefore the following: App. 173 Within fifteen days of receiving the results of the investi- gation conducted by the police department the board will meet and if it determines that the applicant has not been convicted of a crime of a sexual nature, as defined in Section 654010, has not had a similar type of permit/ license revoked in the last year, is at least eighteen years of age, and has not given any false or misleading informa- tion on the application or omitted any material facts from the application then the board shall grant the permit Section 45 Section 6 54 070(D)(1) of the MCL is amended by adding a new subsection f If the board fails to meet within the specified time period, fails to have a quorum, or fails to take action on the application within the specified time period then the permit shall be deemed approved and sent to the applicant by United States Mail to the address listed on the applica- tion within two (2) days of that specified time period. Section 46. Section 6 54 070(E) of the MCL is amended by deleting paragraph 3 and substituting a new paragraph as follows 3 The date the permit was issued. Section 47. Section 6.54.050(A) of the MCL is amended by adding a new subsection as follows. 5 Any applicant found to have previously violated this chapter of the metropolitan code by providing sexually oriented entertainment within the metropolitan area without a permit as evidenced by a judgement of a court, within one year immediately preceding the date of the application shall be ineligible for a license for one year from the date of the judgement The fact that a trial court’s judgement is being appealed shall have no effect on the App. 174 disqualification of the applicant unless the judgement is stayed Section 48 Section 6.54.130 of the MCL is amended by adding a new section after (D) and ky renumbering the sections accordingly as follows: Live sexually oriented entertainment shall not be _permit- ted in booths Section 49. Section 6 54.140(C) of the MCL is amended by adding the words “The distance shall be measured three (3) feet from any outer edge/side of the stage Section 50. Section 6 54 140 of the MCL is amended by adding three new subsections as follows: Only one individual shall occupy a booth at anytime No occupant of a booth shall engage in any type of copulation, masturbation or the display of specified anatomical areas as defined herein or cause any bodily discharge of urine, feces or semen while in the booth No individual shall damage or deface any portion of the booth Live sexually oriented entertainment shall not be permit- ted in booths ‘ No customer shall invade the 3 foot boundary from the outer edge of the stage as required to be designated by Section 6.54 050(A)(3) Section 51 Section 6 54 160(B) shall be amended by deleting the words “A fine” at the beginning of the second sentence and substituting in lieu therefore the words “The five hundred dollar penalty” App. 175 Section 52 This Ordinance shall take effect from and after its passage, the welfare of The Metropolitan Gov- ernment of Nashville and Davidson County requiring it Sponsored By. Chris Ferrell LEGISLATIVE HISTORY Introduced: J uly 20 1999 App. 176 ORIGINAL METROPOLITAN COUNTY COUNCIL SECOND SUBSTITUTE Bill No. BL99-61 An ordinance to amend Title 6, Chapter 6.54 of the Metro- politan Code of Laws concerning sexually oriented busi- nesses. (Filed Dec. 7, 1999) Introduced Passed first Reading Referred to Amended SUBSTITUTE BILL INTRODUCED & DEFERRED DEC 7 1999 Passed second Reading DEC 21 1999 Referred to Passed third Reading JAN 19 2000 Approved JAN 20 2000 By [(Illegible] Metropolitan Mayor Departments Notified Advertised App. 177 Second Substitute Bill No. BL99-61 An ordinance to amend Title 6, Chapter 6 54 of the Metropolitan Code of Laws concerning sexu- ally oriented businesses. Whereas, the United States District Court for the Middle District of Tennessee, Nashville Division held in the matter of Déja vu et al v. the Metropolitan Government et al., Docket Numbers 3-97-1066 and 3-97-1176, that the plaintiffs are likely to be successful on their challenge to the sections of the ordinance barring a sexually oriented business from obtaining a license for a period of years because the operator of the business was convicted of the crime of obscenity and the court believes that this prohibi- tion is unconstitutional; and, Whereas, the United States District Court also held that the plaintiffs are likely to be successful on their challenge to the sections of the ordinance requiring a criminal background investigation of the operators of sexually oriented businesses and entertainers engaged in sexually oriented entertainment because these sections are unconstitutional and they involve an investigation into whether or not the operator or entertainer has been convicted of the crime of obscenity; and, Whereas, the United States District Court also held that the plaintiffs are likely to succeed on their challenge to the section of the ordinance requiring a fee to obtain a license to operate a sexually oriented business or entertain in a sexually oriented business because that fee includes the cost of a criminal background check of the applicant to determine whether or not that applicant has been con- victed of the crime of obscenity and that portion of the fee is unconstitutional; and, App. 178 Whereas, the United States District Court held that the plaintiffs are likely to succeed on the merits of their claim that the definition of the terms “sexually oriented” and “sexually oriented theater” were overly broad even though the definitions of the terms “sexually oriented nightclub” and “sexually oriented entertainment” were held to be constitutional and not overly broad by the Court; and Whereas, though the Metropolitan Government does not concede that barring applicants from obtaining a sexually oriented license or permit because of a prior conviction for the crime of obscenity is unconstitutional, that to conduct a criminal background check to discover if an applicant has been convicted of the crime of obscenity is unconstitutional, that charging the applicants the cost of a criminal background check to discover if the applicants have been convicted of the crime of obscenity is unconsti- tutional or that the definitions of the terms “sexually oriented” -and “sexually oriented entertainment” were overly broad; and Whereas, it is the Metropolitan Government’s objec- tive to resume regulation of the sexually oriented busi- nesses within its jurisdiction without the delays that would most likely occur if the United States District Court’s temporary injunction order were appealed; and Whereas, amending the ordinance to comply with the most recent ruling of the United States District Court will give the Metropolitan Government the opportunity to move to dissolve the temporary injunction and proceed with enforcement of its ordinance as quickly as possible, the following amendments are proposed. App. 179 Now therefore, be it enacted by the Metropolitan Council of Nashville and Davidson County as follows: Section 1. Sections 6.54.010(D) of the Metropolitan Code of Laws (hereinafter “MCL”) as amended by 099- 1814 is amended by deleting the word “obscenity” from the definition of “Crimes of a sexual nature” before the words “or crimes committed in a jurisdiction” and after the words “patronizing prostitution, promoting prostitution.” Section 2. Section 6.54.010(0) of the MCL as amended by 099-1814 is amended by deleting this subsec- tion in its entirety. Section 3. Section 6.54.010(Y) of the MCL as amended by 099-1814 is amended by deleting this subsec- tion in its entirety and substituting in lieu therefore the following: “Sexually oriented” when used to modify film, movie, motion picture, videocassette, slides, or other photographic reproductions shall mean a film, movie, motion picture videocassette, slides or other photographic reproduction that regu- larly depicts material which is distinguished or characterized by an emphasis on matter depict- ing or describing “specified sexual activities” or specified anatomical areas” offered for observa- tion by the patron(s) on the premises of a sexu- ally oriented business. Section 4. Section 6.54.010(Z)(3) of the MCL as amended by 099-1814 is amended by deleting this subsec- tion in its entirety and substituting the following in lieu therefore: App. 180 3. “Sexually oriented theater” is an enclosed building in which films, motion pictures, video- cassettes, slides, or other photographic reproduc- tions that are distinguished or characterized by an emphasis on depictions of “specified sexual ac- tivities” or “specified anatomical areas,” as de- fined in this section, are regularly presented for observation by patrons therein. Section 5. Section 6.54.010 of the MCL as amended by 099-1814 is amended by. adding a new definition and renumbering this subsection as appropriate. “Sexually oriented material” shall mean “sexu- ally oriented entertainment” and/or any mate- rial, including films, movies, motion pictures, videocassettes, slides, or other photographic re- productions, which regularly depicts material which is distinguished or characterized by an emphasis on matter depicting or describing “specified sexual activities” or specified anatomi- cal areas” offered for observation by the patron(s) on the premises of a sexually oriented business. Section 6. Section 6 54.090 of-the MCL as amended by 099-1814 is amended by deleting the words “five hun- dred” and substituting in lieu therefore the words “three hundred fifty” after the words “A license fee of” and before the words “dollars shall be submitted with the application” and by deleting the words “one hundred” and substituting in lieu therefore the word “fifty” after the words “A permit fee of” and before the words “dollars shall be submitted with the application”. App. 181 Section 7. This Ordinance shall take effect from and after its passage, the welfare of The Metropolitan Gov- ernment of Nashville and Davidson County requiring it. APPROVED AS TO FORM INTRODUCED BY: AND LEGALITY: /s/ Shayna Abrams _—_—_—_—_s /S/ Chris Ferrell Metropolitan Attorney Members of Council App. 182 Chapter 6.54 SEXUALLY ORIENTED BUSINESSES Sections: 6.54.010 6.54.020 6.54.030 6.54.040 6.54.050 6.54.060 6.54.070 6.54.080 6.54.090 6.54.100 6.54.110 6.54.120 6.54.130 6.54.140 6.54.150 6.54.160 6.54.i70 Definitions. Sexually oriented business licensing board. License required. Application for license. Standards for issuance of license. Permit required. Application for permit. Standards for issuance of a permit. Fees. Display of license or permit. Renewal of license or permit, Hours of operation. Responsibilities of the operator. Prohibitions and unlawful sexual acts. Revocation or suspension of license/ permit. Penalties and prosecutions. Invalidity of part. 6.54.010 Definitions. For the purpose of this chapter, the words and phrases used in this chapter shall have the following meanings, unless otherwise clearly indicated by the context: App. 183 _ A. “Aggravated rape” means as defined in the Tennessee Code Annotated Section 39-15-502. B. “Aggravated sexual battery” means as defined in the Tennessee Code Annotated Section 39-15-504. C. “Booth” means any booth, cubicle, stall, room or compartment which is designed, constructed or used to hold or seat patrons/customers and is designed such that the booth is separated from the common areas of the premises and is used for presenting sexually oriented entertainment including, but not limited to viewing sexually oriented moving pictures or viewing sexually oriented publications by any photographic, electronic, magnetic, digital or other means or medium (including, but not limited to, film, video or magnetic tape, laser disc, cd-rom, books, magazines or periodicals) for observation by patrons therein. “Booth” shall not mean a room or enclo- — sure that is designed, constructed and regularly used to seat more than ten persons. D. “Crimes of a sexual nature” means the crimes of rape, aggravated rape, aggravated sexual assault, public indecency, statutory rape, rape of a child, sexual exploita- tion of a minor, indecent exposure, prostitution, patronizing prostitution, promoting prostitution, or crimes committed in a jurisdiction other than Tennessee which, if committed in this state, would have constituted the crimes listed above. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this state, the elements of the offense shal] be used to determine what classifica- tion the offense is given. E. “Current entertainer” means an_ entertainer performing sexually oriented entertainment within the metropolitan area as of March 1, 1999. App. 184 F. “Employee” means any and all persons, including independent contractors, who work in or at or render any services directly related to the operation of a sexually oriented business. G. “Entertainer” means any person who provides live entertainment within a sexually oriented business as defined in this section, whether or not a fee is charged or accepted for entertainment and whether or not entertain- ment is provided as an employee or an independent contractor. H. “Existing sexually oriented business,” means a sexually oriented business that is operating within the metropolitan area as of March 1, 1999. I. “Indecent exposure” means as defined in the Tennessee Code Annotated Section 39-13-511. J. “Location” means a single site for which only one use and occupancy permit would be required. K. “Metropolitan area” means the general services district of the metropolitan government of Nashville and Davidson County. L. “Metropolitan council” means the legislative body of the metropolitan government of Nashville and Davidson County, Tennessee. M. “New entertainer” means an entertainer not performing sexually oriented entertainment within the metropolitan area as of March 1, 1999. N. “New sexually oriented business” means a sexu- ally oriented business not in operation as of March 1, 1999. App. 185 O. Deleted. P. “Operator” means any _ person, partnership, limited partnership, joint venture, corporation or any other type of business entity operating, conducting or maintaining a sexually oriented business. Q. “Patronizing prostitution” means as defined in the Tennessee Code Annotated Section 39-13-512. R. “Promoting prostitution” means as defined in the Tennessee Coce Annotated Section 39-13-512. S. “Prostitution” means as defined in the Tennessee Code Annotated Section 39-13-512. T “Public indecency” means as defined in the Ten- nessee Code Annotated Section 39-13-511. U. “Rape” means as defined in the Tennessee Code Annotated Section 39-15-503. V. “Rape of a child” means as defined in the Tennes- see Code Annotated Section 39-15-522. W. “Sexual battery” means as defined in the Tennes- see Code Annotated Section 39-15-5085. X. “Sexual exploitation of a minor” means as defined in the Tennessee Code Annotated Sections 39-17-1003, 39- 17-1004 and 39-17-1005. Y. “Sexually oriented” when used to modify film, movie, motion picture, videocassette, slides, or other photo- graphic reproductions means a film, movie, motion picture videocassette, slides or other photographic reproduction that regularly depicts material which is distinguished or charac- terized by an emphasis on matter depicting or describing App. 186 “specified sexual activities” or “specified anatomical areas” offered for observation by the patron(s) on the premises of a sexually oriented business. Z. “Sexually oriented business/establishment” means any commercial establishment which for a fee or inciden- tally to another service, regularly presents material or exhibitions distinguished or characterized by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas” as de- fined in this section for observation by patrons therein. 1. “Sexually oriented bookstore” means an estab- lishment having a majority of its stock in trade or a majority of its floor space in books, magazines, other periodicals, or any other items which are distinguished or characterized by their emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas” as defined in this section for observation of the patrons therein; or in conjunction therewith has facilities for the presentation of sexually oriented entertainment, including but not limited to sexually oriented movies, sexually oriented videos, sexu- ally oriented films, or sexually oriented live entertain- ment, for observation by patrons therein. 2. “Sexually oriented nightclub” means a theater, concert hall, auditorium, nightclub, bar, restaurant, or similar commercial establishment which regularly fea- tures live performances that are characterized by any actual or simulated performance of “specified sexual activities” or the exposure of “specified anatomical areas,” as defined in this section. - 3. “Sexually oriented theater” means an enclosed building in which films, motion pictures, videocassettes, App. 187 slides, or other photographic reproductions that are distinguished or.characterized by an emphasis on depic- tions of “specified sexual activities” or “specified anatomi- cal areas,” as defined in this section, are regularly presented for observation by patrons therein. 4. “Sexually oriented video store” means a commer- cial establishment having a majority of its stock or a majority of its floor space dedicated to “sexually oriented videos,” as defined in this section, which are rented or sold or presented for a fee or incidentally to another service; or in conjunction therewith, regularly presents on the prem- ises sexually oriented motion pictures or sexually oriented films, “sexually oriented videos,” or sexually oriented live exhibitions which are distinguished or characterized by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas” as defined in this section for observation by patrons therein. a. “Sexually oriented videos” means a video, CD, laser disk, or similar medium with a cover that depicts “specified sexual activities” or “specified anatomical areas” or a transparent or less than opaque cover through which “specified sexual activities” or “specified anatomical areas” can be viewed. AA. “Sexually oriented entertainment” means the regular presentation, for a fee or incidentally to another service, of material or exhibitions distinguished or charac- terized by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified ana- tomical areas” as defined in this section for observation by patrons therein. App. 188 BB. “Sexually oriented material” means “sexually oriented entertainment” and/or any material, including films, movies, motion pictures, videocassettes, slides, or other photographic reproductions, which regularly depicts material which is distinguished or characterized by an emphasis on matter depicting or describing “specified sexual activities” or “specified anatomical areas” offered for observation by the patron(s) on the premises of a sexually oriented business. CC. “Specified anatomical areas” means: 1. Less than completely and opaquely covered; a. Human genitals, pubic region, b. Buttocks, c. Female breasts below a point immediately above the top of the areola; and 2. Human male genitals in a discernibly turgid state, even if completely opaquely covered. DD. “Specified sexual activities” means: 1. Human genitals in a state of sexual stimulation or arousal; 2. Acts of human masturbation, sexual intercourse or sodomy; 3. Fondling or erotic touching of human genitals, pubic region, buttock or female breasts. EE. “Statutory rape” means as defined in the Ten- nessee Code Annotated Section 39-15-506. (Ord. BL99-61 §§ 1-5, 2000; Ord. 99-1814 §§ 1-5, 1999; Amdt. 1 § 1 with Ord. 99-1503 §§ 1-3, 1999; Ord. 97-1022 §1, 1997; App. 189 amended during 9-97 supplement; Amdt. 7 (part) and Amat. 3 §§ 1 and 2 with Ord. 97-796 § 2 (part), 1997) 6.54.020 Sexually oriented business licensing board. A. Establishment. A _ sexually oriented business licensing board is created and designated the metropolitan sexually oriented business licensing board (herein “board”). B. Membership — Terms. 1. The board shall consist of five members, who shall have been residents of the metropolitan area for not less than one year, and who shall continue to be eligible so long as they reside in the metropolitan area, to be appointed by the mayor and confirmed by a majority vote of the metro- politan counci.. 2. At least one of the five members shall be an attorney, and one of the five members shall be a health provider. 3. Of the five members first appointed, two shall be appointed for a term of two years, and two shall be ap- pointed for a term of three years, and one shall be ap- pointed for a erm of four years. Thereafter, each member shall be appointed for a term of four years, and shall serve until his/her successor is appointed. Any vacancy other than the expiration of terms shall be filled for the unex- pired term. C. Election of Officers — Term. The board shall organize by the election of a chair and a vice-chair, who shall serve for a period of one year or until a successor shall have been chosen. The vice-chair is authorized to act App. 190 in the place of the chair and in the same capacity as the chair when the chair is unavailable. D. Meetings — Quorum Required — Minutes and Transcript. 1. The board shall hold two regular meetings each month at a time fixed by the board, and may hold such special meetings as may be necessary. 2. The attendance of at least a majority of the members of the board, not including unfilled positions, shall be required to constitute a quorum for the purpose of transacting business. 3. Minutes shall be kept of the meetings in perma- nent form and a record shall be kept of the action of the board with respect to every application for a license and/or a permit. The concurring vote of a majority of the mem- bers present and voting shall be necessary for the grant- ing, revoking, suspending or any other action involving licenses or permits. 4. No transcript of the proceedings had before the board shall be in any form other than narrative, unless the board shall have been requested to provide for an exact copy of the testimony by an interested party at least twenty-four hours prior to a board meeting. The cost of an exact copy shall be borne by the person requesting the same. E. Powers and Duties. 1. The board shall have jurisdiction over the licens- ing, regulating and controlling of all sexually oriented establishments as provided in this chapter, located in the metropolitan area. ; App. 191 2. The board may promulgate such bylaws, rules and regulations not inconsistent with state law, the Metropoli- tan Charter, or any ordinance, as it deems appropriate for the conducting of its business. 3. The board has the authority to subpoena wit- nesses to testify before the board. F. Inspectors — Authority. The board is empowered to employ suitable person(s) as inspectors which inspectors shall not hold any civil service status. The board shall prescribe the duties of such inspectors so as to enforce the applicable provisions of this title. G. Procedures for Hearings. This section shall apply to all hearings by the board including but not limited to hearings for revocation, suspension or denial of a license/ permit. 1. Upon receiving a written request for a hearing, the board shall send the party requesting the hearing a notice stating the time and place of the hearing and the _ right to be represented by counsel. 2. At the hearing, the.party requesting the hearing shall appear on his/her own behalf or be represented by counsel. All witnesses shall be sworn. The chair shall allow the party requesting the hearing to present witnesses on his/her own behalf and to cross-examine all witnesses testifying against him/her. 3. All decisions of the board shall be in writing, setting forth the findings of the board, and shall be signed by the chair or vice-chair. App. 192 4. Minutes shall be kept of all proceedings before the board in permanent form and a record shall be kept of the actions of the board with respect to all hearings. 5. A record (which may consist of a tape or similar electronic recording) shall be made of all oral proceedings. The record must be maintained by the board for a period of ninety days. Such record or any part thereof shall be transcribed at the request of any party at such party’s expense. i 6. The board will arrange for a court reporter to be present at any hearing after an initial adverse administra- tive decision. (Amdt. 1 with Ord. 99-1814 § 6, 1999; Amdt. 1 § 14 with Ord. 99-1503, 1999; Ord. 97-1022 § 3, 1997; Amdt. 7 (part) with Ord. 97-796 § 2 (part), 1997) 6.54.030 License required. A. Except as provided in subsection F of this section, from and after March 1, 1999, no sexually oriented busi- ness shall be operated or maintained within the metropoli- tan area without first obtaining a license to operate issued by the board. B. Any person, partnership, limited partnership, joint venture, corporation or any other type of business entity which desires to operate more than one sexually oriented business/establishment must have a license for each sexually oriented business/establishment. C. Only one license may be issued for each sexually oriented business location. D. No license or interest in a license may be trans- ferred to any person, partnership or corporation. App. 193 E. It is unlawful for any entertainer or operator to knowingly work in or about, or to knowingly perform any service directly related to the operation of any unlicensed sexually oriented business. It is unlawful for any employee to knowingly work in or about, or to knowingly perform any service directly related to the operation of any unli- censed sexually oriented business while sexually oriented entertainment is being presented. F. All existing sexually oriented businesses, as defined in Section 6.54.010, must submit an application for a license by March 15, 1999, or cease operations. All existing sexually oriented businesses which apply for a license by March 15, 1999, may continue to operate the sexually oriented business descrived in the application even if the board votes to deny the application where such denial is appealed to a court in accordance with Section 6.54.040(E)(3). All new sexually oriented businesses, as defined in Section 6.54.010, may submit an application at any time but may not operate until a license is granted except as permitted in Section 6.54.040(E)(4). G. Any applicant found to have previously violated this chapter by operating or maintaining a sexually oriented business/establishment within the metropolitan area without a license, as evidenced by a judgement of a court, within one year immediately preceding the date of the application shall be ineligible for a license for one year from the date of the judgement. The fact that a trial court’s judgement is being appealed shall have no effect on the disqualification of the applicent unless the judgement is stayed. (Ord. 99-1814 §§ 7, 8, 1999; Ord. 99-1503 §§ 4, 5, 1999; Ord. 97-1022 § 5, 1997; Amdt. 7 (part) with Ord. 97- 796 § 2 (part), 1997) a App. 194 6.54.040 Application for license. A. Application. 1. Any person, partnership, limited partnership, joint venture, corporation or any other type of business entity desiring to secure a license shall make application to the board. The applicant shall file the original applica- tion with six copies. The original application shall be dated by the board and held in the files of the board. A copy of the application shall be distributed the next business day by the board to: the police department, the department of codes administration, the health department, and the applicant. 2. Application forms shall be available at the office of the board. 3. The application form shall include all the informa- tion indicated in subdivisions (5)(a) through (5)(I) of this ‘subsection. 4. The following persons must be listed in the license application for any sexually oriented business that is a corporate entity of any kind: the registered agent and the name and address of all officers and directors of the corporation, and any stockholder holding a majority controlling percentage of the stock of a corporate applicant and who will be involved in the day-to-day operation and management of the business. The following persons must be listed in the license application for any sexually ori- ented business that is a partnership, limited partnership, joint venture, or any other type of business: the name and address of all persons who will be involved in the day-to- day operation and management of the business. App. 195 5. The applicant shall furnish the following informa- tion under oath: a. Name and address of the applicant, including all aliases (business address is sufficient); b. Proof of the applicant’s date of birth demonstrat- ing that the applicant is at least eighteen years of age; c. All residential addresses of the applicant for the past three years (for the purpose of facilitating the police investigation into the applicant’s criminal background regarding crimes of a sexual nature); d. Whether the applicant previously operated in this or any other county, city or state under a sexually oriented business/adult. entertainment license/permit. Whether the applicant has ever had such a license/permit revoked or suspended, within the last year from the date of applica- tion, the reason therefor, and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation; - e. All convictions for crimes of a sexual nature, as defined in Section 6.54.010, punishable as a misdemeanor violation that have occurred within the past two years. All convictions for crimes of a sexual nature, as defined in Section 6.54.010, punishable as a felony that have oc- curred within the past five years; f. All judgements by a court within one year for violations of the metropolitan zoning Section 17.64.260; g. Fingerprints and two photographs at least two inches by two inches of the applicant (for the purpose of facilitating the police investigation into the applicant’s criminal background regarding crimes of a sexual nature); App. 196 h. The address of the sexually oriented business to be operated by the applicant; i. If the applicant is a corporation, the application shall specify the name of the corporation, the date and state of incorporation, the name and address of the regis- tered agent and the name and address of all officers and directors of the corporation, and any stockholder holding a majority controlling percentage of the stock of a corporate applicant and who will be involved in the day-to-day operation of the business; j. Ifthe applicant is a partnership, joint venture, or any other type of business, the application shall specify the name and address of all persons who will be involved in the day-to-day operation of the business; k. A statement by the applicant that he/she is familiar with the provisions of this chapter and a state- ment swearing that information provided on the applica- tion is true and accurate. 6. The applicant shall provide the board with his/her application, a diagram, drawn to scale of the premises, including the location and layout of all booths and stages and the location of the clerk/manager’s stand or counter. Though the diagram shall be drawn to scale, it does not have to be professionally prepared. 7. If any of the information on the application changes over the course of the time for which the license is issued, including any changes in the physical layout of the premises, the licensee shall inform the board, in writing, of the changes. App. 197 B. Inspections and Investigations. 1. The codes department shall, upon receipt of a copy of the application, inspect the premises to insure that the establishment complies with the unique physical layout requirements set out in Section 6.54.050(A)(1), 6.54.050 (A)(3) and 6.54.130(C) of this chapter. The health depart- ment shall inspect the premises to insure compliance with applicable health code statutes, ordinances, and regula- tions. The police department shall investigate the appli- cant’s criminal history collecting the applicant’s fingerprints and 2 x 2 photo either by performing these functions or by reviewing these items which were provided by the applicant and by performing a background investi- gation for crimes of a sexual nature. The results of both the inspections and the investigation shall be filed in writing with the board no later than twenty days after the date the application was filed with the board. Any inspec- tion or investigation information not filed with the board in the time period specified shall not prevent the applicant from receiving the license and shall be treated by the board as if the report revealed no violations of applicable statutes, ordinances, or regulations, no violations of the provisions of this chapter, no sexually-oriented business/ adult entertainment zoning code violations and/or no applicable criminal history. 2. The code department shall confirm that any booths or stages conform with the submitted diagram and the requirements set out in Sections 6.54.050A and 6.54.130. 3. The police department shall complete its investi- gation and the codes department and health department shall complete their respective inspections and _ shall App. 198 communicate the results to the board in writing within twenty days of receipt of the application. The written investigation from the codes department sand health department shall end with substantielly one of the follow- ing statements: The location at __ complies with Chapter 6.54 and the applicable health code sections of the metropolitan code. The location at ___ does not comply with Chapter 6.54 and the applicable health code sections of the metropolitan code. It is in violation of the fol- lowing provisions: Section numbers of code viola- tions. The writing from the police department shall end with substantially the following statement: The police department's criminal record check indicates that the persons listed on the ap- plication have/have not committed a crime of a sexual nature within the past five years. The persons listed on the application have committed the following crimes of a sexual nature: Name Crime Date 4. If the building/structure has a valid use and occupancy permit, the applicant shall provide the board with a copy of the valid use and occupancy permit which shall be made part of the file. C. Board Action on Inspection and Investigation Results. 1. Within fifteen days of receiving the results of the investigation conducted by the police department App. 199 and the inspections by the codes department, and health department the board will meet and determine if the applicant is in compliance with this chapter and the applicable health statutes, ordinances and regulations. 2. If the board determines that the applicant is in compliance with this chapter, the applicable health stat- utes, ordinances and regulations, and the applicant has not committed a crime of a sexual nature, as defined in Section 6.54.010, is at least eighteen years of age, and has not given any false or misleading information on the application or omitted any material facts from the applica- tion, then the board shall grant the license. False or misleading information does not include information which the applicant reasonably believed, after exercising due diligence, was correct at the time of the application. 3. Ifthe board fails to meet within the specified time period, fails to have a quorum, or fails to take action on the application within the specified time period, then the license shall be deemed approved and sent to the applicant by United States Mail to the address listed on the applica- tion within two days of the events described in this para- graph. 4. In the event the board denied the application in accordance with the provisions of this chapter, such denial and the reason for the denial shall be mailed to the apph- cant the next business day after the board meeting review- ing the results of the investigation and inspections. 5. If it is determined by the board, using the applica- tion and the inspection reports that the applicant has violated the provisions of the zciing code applicable to sexually oriented/adult entertainment businesses within the past two years, then the applicant is ineligible for a App. 200 license for one year from the date the citation was sus- tained. A violation of the zoning code shall be evidenced by a judgement of a court. The fact that the judgement is being appealed shall have no effect on the disqualification of the applicant unless the judgment is stayed. 6. Any investigation reports or inspection reports not filed with the board in the time period specified in this section shall not prevent the applicant from receiving his/her license and shall be treated by the board as if that department approved the application. 7. Ifthe board determines that the actual structure does not comply with Section 6.54.050(A) or the submitted diagram, then the applicant is not in compliance with this code section and the license shall be denied in accordance with Section 6.54.050(A) and (B). 8. Ifin the course of the investigation it is discovered any false or misleading statement or information was given on the application, or material facts were omitted from the application, the board shall deny the application in accordance with Section 6.54.050(B)(3). False or mis- leading information does not include information which the applicant reasonably believed, afier exercising due diligence, was correct at the time of the application. 9. Within fifteen days of receiving the results of the investigation conducted by the police department, and inspection reports from the codes department, and health department, if the board shall determine that the appli- cant is not in compliance with this chapter, the zoning code or the applicable health statutes, ordinances and regulations, the applicant shall be notified in writing, the next business day, that the license is denied for failing to App. 201 comply with applicable statutes, ordinances and regula- tions. This notice shall specify the violation. If the appli- cant can come into compliance as described in subsection D of this section, the denial shall not take effect. The notice shall also specify that the applicant may request a hearing within five days, cure the violation within fifteen days and request reinspection or request an extension of time. 10. The board has the discretion to hold any applica- tion for further investigation if: (a) the initial investigation requires investigation into out-of-state records; or (&) verifi- cation of out-of-state employment relating to a sexually oriented business or a sexually oriented business license/ permit or similar business license/permit is needed. Such additional investigation shall not exceed an additional ten days, from the end of the initial fifteen days specified - subsection (C) 1) of this section, unless otherwise agreed to by the applicant. 11. Wherever an application is denied or held for further investigation, the board shall advise the applicant in writing the next business day of the reasons for such action. Upon conclusion of the additional investigation, the board shall advise the applicant in writing the next business day whether the application is granted or denied. 12. Failure or refusal of the applicant to give any information relevant to the investigation of the applica- tion, or his/her refusal or failure to appear at a reasonable time and place for examination under oath regarding such application or his/her refusal to submit to or cooperate with any investigation required by this chapter, shall constitute an admission by the applicant that he/she is ineligible for such license and shall be grounds for denial App. 202 thereof by the board. This in no way requires the applicant to agree to additional time extensions beyond that allowed in subsection (C)(10) of this section. D. Extensions of Time for the Applicant. 1. If the license is denied, the applicant may rein- state his/her application by notifying the board in writing that he/she has come into compliance and requests rein- spection. a. The applicant has fifteen days from the mailing of the denial to cure the violation and notify the board or to request an extension pursuant to subsection (D)(2) of this section. The applicant has the responsibility to contact the board. b. Once contacted, the board shall notify the appro- priate inspector the next business day that the applicant believes he/she has come into compliance. c. Upon notification by the board, the appropriate inspector shall return to the location for reinspection and shall submit another written report as indicated in subsec- tion (B)(3) of this section. The inspector has five days from the date he/she was notified by the board to reinspect the premises and inform the board as to whether the applicant has come into compliance in the same manner described in subsection (B)(3) of this section and using the same lan- guage required in subsection (B)(3) of this section. d. Based on the report of the inspector(s), the board shall determine if the applicant has come into compliance, and if so the board shall issue the license at the next regular meeting. The next meeting shall be held no later than fifteen days after the inspection report is filed with App. 203 the board. Any inspections not filed with the board in the time period specified in this section will be treated as described in subsection (C)(6) of this section. e. If the applicant fails to either contact the appro- priate inspector to report that the code violations have been corrected, or if the code violations have not been corrected, then the application will be denied. 2. Ifthe process of curing the violation requires more time than that provided in subsection (D)(1) of this sec- tion. the applicant may request an extension from the board. If the applicant does not make such a request in the time allotted, the application is denied. a. The request for an extension must be made in writing within fifteen days from the denial. b. The board shall hear the applicant’s request for an extension at the next regular meeting. The next meeting shall be held no later than fifteen days after the request for the extension is received by the board. c. The hearing on the extension shall follow the same rules as set out in Section 6.54.020(G) except that the decision of the board shall grant or deny the extension and a decision to grant an extension shall take effect immedi- ately. _d. An extension shall only be granted when the codes inspector and the health inspector agree that an extension will not endanger the health or safety of the community and the board determines that the applicant has -demon- strated a good faith effort to make the necessary repairs or cure the violation(s) in a timely manner. App. 204 3. If the applicant fails to follow the procedure set out in this subsection then the application is denied and the applicant must reapply to obtain a license. Following the procedure set out in subsections (D)(1) or (D)(2) of this section requires no additional fees. Once the deadlines to cure the violation or ask for an extension of time have passed, the initial denial shall be treated as a denial of the application. E. Denial of the License Application. 1.. When an application is denied, the applicant has the right to request a hearing within five days of the board’s notification. a. The request shall be in writing and filed with the board within five days of the board’s decision. b. The board shall hear all the evidence pertaining to the denial of the application at the next regular meeting. The next meeting shall be held no later than fifteen days after the request described above is mailed. c. At the hearing, the applicant may present evi- dence as to why his/her application should not be denied. If the applicant fails to appear at the hearing before the board he/she will have waived the right to present evi- dence to the board. Failing to appear before the board will not preclude the applicant’s right to appeal any denial to the circuit or chancery courts of Davidson County. d. The board shall affirm or reject the denial of the application at the hearing and in writing state the reasons for the board’s decision. App. 205 e. The denial of the application shall be mailed by U.S. mail the next business day to the address of the applicant as listed on the application. f. Ifthe board fails to meet within the specified time period, fails to have a quorum, or fails to take action on the application within the specified time period, then the license shall be deemed approved and sent to the applicant by United States Mail to the address listed on the applica- tion within two days of that specified time period. Y 2. Any denial of an application for a license may be immediately appealed to the circuit or chancery courts of Davidson County. The metropolitan department of law may institute proceedings for a declaratory judgment. If the applicant chooses to appeal by filing a petition for a writ of certiorari, then the metropolitan government shall file the record of all proceedings with the court within ten days from the date the metropolitan government was served with a petition for a writ of certiorari. 3. For an existing sexually oriented business, as defined in Section 6.54.010, any adverse administrative decision that is appealed to any court shall not take effect until that decision has been upheld by the court after adjudication on the merits. If the court fails to rule within forty days of the filing of an appeal, a license shall issue. When the court makes a determination after adjudication on the merits that upholds the administrative denial of the license then that license shall be revoked in accordance with Section 6.54.150(A)(8). Adverse administrative decisions of the board, which are not appealed shall not take effect for sixty days from the date of the decision to allow the affected party time to seek judicial review. App. 206 4. For a new sexually oriented business, as defined in Section 6.54.010, any adverse administrative decision shall take effect the day the decision is issued by the board. If the adverse administrative decision is appealed to a court, and if the court fails to rule within forty days of the filing of an appeal, a license shall issue. When the court makes a determination after adjudication on the merits that upholds the administrative denial of the license then that license shall be revoked in accordance with Section 6.54.150(A)(8). (Ord. 99-1814 §§ 9 ~ 32, 1999; Amdt. 1 §§ 2, 3 with Ord. 99-1503 §§ 6 — 30, 1999; Ord. 97- 1022 §§ 6 — 39, 1997; amended during 9-97 supplement; Amdt. 6 § 5 (part) with Ord. 97-796 § 2 (part), 1997) 6.54.050 Standards for issuance of license. A. Physical Layout of Sexually Oriented Business. 1. Any sexually oriented business having available for customers, patrons or members any booth, for the viewing of any sexually oriented entertainment, including but not limited to sexually oriented, films, sexually ori- ented movies, sexually oriented videos, shall submit a diagram under Section 6.54.040(A)(6) and the diagram submitted must be substantially the same as the structure observed by the inspector. Further, the structure and the diagram shall comply with the following requirements: a. Access. Each booth shall be totally accessible to and from aisles and public areas of the sexually oriented business and shall be unobstructed by any door, gate, lock or other control-type devices. b. Construction. Every booth shall meet the follow- ing construction requirements: —- App. 207 i. Each booth shall be separated from adjacent booths and any nonpublic areas by a solid or opaque wall; ii. Have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying same; ii. All walls shall be solid and without any openings, extended from the floor to a [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0605%3A4. Public record. Not legal advice.