TITLE 7 PUBLIC PEACE SAFETY AND MORALS Chapters: 7.04 State Criminal Statutes and Penalties 7.08 Curfew 7.12 Loitering 7.16 Private Clubs 7.20 Outside Fire Service 7.24 Open Burning 7.28 Solicitors, Itinerant Peddlers and Hawkers 7.32 Trapping 7.36 Fireworks 7.40 Sexually Oriented Businesses CHAPTER 7.04 STATE CRIMINAL STATUTES AND PENALTIES Sections: 7.04.01 Misdemeanors 7.04.02 Criminal laws adopted 7.04.03 Fines 7.04.01 Misdemeanors Each and every act,matter or thing which the laws of the state of Arkansas,make misdemeanor, is hereby prohibited within the corporate limits of the city of Ozark,Arkansas, and made unlawful as a violation of this ordinance. (Ord. No. 151, Sec. 1.) 7.04.02 Criminal laws adopted The criminal laws of the state of Arkansas, as now existing and as hereafter may be provided, insofar as same may make any act, matter or thing a misdemeanor, are hereby adopted and incorporated into the Criminal Code of the ordinance of the city of Ozark,Arkansas. (Ord. No. 151, Sec. 2.) 7.04.03 Fines Each and every person who shall, within the corporate limits of the city of Ozark,Arkansas, violate any of the provisions of the laws into this ordinance incorporated and adopted shall on conviction thereof be punished by fine or imprisonment, or both, as the case 66 may be,together with the costs of the proceeding of not less than the minimum nor more than the maximum penalty as prescribed by the corresponding state law in such cases make and provide; which penalty shall be enforced in the manner now prescribed by the corresponding state law for the enforcement and collection of fines, forfeitures and penalties imposed by city courts of cities of the second class. All fines when imposed, shall be paid to the Treasurer, who shall deposit said fines in the city treasury and make monthly or quarterly reports to the City Council of such fines collected. (Ord. No. 151, Sec. 3.) CHAPTER 7.08 CURFEW Sections: 7.08.01 Curfew 7.08.02 Exceptions 7.08.03 Waiver permit 7.08.04 Waiver permit conditions 7.08.05 Penalties 7.08.01 Curfew It shall be unlawful for any person under the age of eighteen(18) years to be, or to remain unnecessarily in the city streets of public places at night after the hour of 10:30 p.m., Sunday through Thursday nights, and one-half hour after midnight on Friday and Saturday nights. (Ord. No. 95-3, Sec. 1.) 7.08.02 Exceptions The curfew imposed by the provisions of this ordinance shall not apply if the minor person: A. Is accompanied by a parent, guardian or other person responsible for or having legal custody of such minor; or B. Such minor's gainful employment makes it necessary for such minor to be upon the streets, alleys, or other public places after the specified hours; or C. Is on an emergency errand sanctioned by the parent, guardian, or other adult person responsible for or having legal custody of such minor. (Ord. No. 95-3, Sec. 1.) 7.08.03 Waiver permit The Mayor of the city of Ozark, Chief of Police, and in the event of Chief's absence, the Sergeant, may issue a waiver of curfew permit, which will extend the 40 curfew to a time which is thirty(30)minutes after the scheduled termination time of the activity 67 for which the permit is granted,to any group of persons subject to the provisions of this division which is sponsored by either a public or parochial school or church within the city or is sponsored by adults, associated with either a public or parochial school, for the purpose of supervising annual senior day and night activities at public or parochial schools in the city. (Ord. No. 95-3, Sec. 1.) 7.08.04 Waiver permit conditions A waiver of curfew permit may be issued only when the planned activity complies with the following conditions: A. A written application must be filed with the Mayor of Ozark, Chief of Police, or Sergeant not less than three (3) days prior to the date of which the waiver is requested; B. The application must be signed by one or more of the adult sponsors of the group; C. The application must show the location of the event for which the waiver is requested; D. The application must show the type of function or activity for which the waiver is requested; E. The application must show the time of the activity or function will commence and the time will end; F. The application must show the name and address of the sponsor of the event; G. The application must show the names of the adult supervisors who will be in attendance at the function; H. It shall be the responsibility of the adult supervisors to notify the parents of all minors that the waiver has been granted, if it is, and the date and hour when the waiver will expire. (Ord. No. 95-3, Sec. 1.) 7.08.05 Penalties Any minor charged under this ordinance, or against whom a petition for delinquency is filed, shall be subject to the penalties set out in the Arkansas Juvenile Code. (Ord.No. 95-3, Sec. 1.) 68 CHAPTER 7.12 LOITERING Sections: 7.12.01 Definition 7.12.02 Loitering on public property 7.12.03 Privately owned business or commercial property 7.12.04 Loitering upon privately owned property 7.12.05 Penalty 7.12.01 Definition Loitering shall mean remaining idle in essentially one location and shall include the concepts of spending time idly loafing, or walking about aimlessly, and shall also include the colloquial expression"hanging around." (Ord.No. 94-20, Sec. 1.) 7.12.02 Loitering on ublic ro�ertY No person shall loiter in a public place in such a manner as to: A. Create or cause to be created a danger o g f a breach of a peace; B. Create or cause to be created any disturbance or annoyance to the comfort and repose of any person; C. Obstruct the free passage of pedestrians or vehicles; D. Obstruct,molest, or interfere with any person lawfully in any public place. (Ord. No. 94-20, Sec. 2.) 7.12.03 Privately owned business or commercial �ro�erty To prohibit loitering on or about the privately owned business or commercial property, the owners of said property shall erect signs or placards setting forth such prohibition, and such signs must meet with the following standards: A. Signs must be clearly visible from all areas of the property; and B. Signs must clearly state that loitering is prohibited on or about the premises. (Ord. No. 95-18, Sec. 1.) 7.12.04 Loitering upon privately owned ropes No person shall loiter upon a privately owned business or commercial property in such a manner as to: 69 A. Be in violation of or in contravention of the demand of the property owner as set forth on signs erected by the property owner pursuant to 7.12.03 above; B. Create or cause to be created a danger of the breach of the peace; C. Create or cause to be created any disturbance or annoyance to the comfort and repose of any person; D. Obstruct the free passage of pedestrians or vehicles; or E. Obstruct,molest, or interfere with any person lawfully in any public place. (Ord.No. 94-20, Sec. 4.) 7.12.05 Penalty Any person violating the provisions of this ordinance shall be guilty of a misdemeanor and shall be fined not less than Fifty Dollars ($50.00)nor more than Two Hundred Dollars ($200.00) for each offense, and a separate offense shall be deemed committed on each day during or on which a violation occurs of continues. (Ord.No. 94-20, Sec. 5.) CHAPTER 7.16 PRIVATE CLUBS Sections: 7.16.01 Hours 7.16.02 Fine 7.16.03 Under 18 7.16.04 Selling alcohol 7.16.01 Hours It shall be unlawful for the holder of an On-Premises Private Club Permit from the Alcoholic Beverage Control, or the permittee's agent or employee to allow any alcoholic beverage to be consumed, dispensed, or served on premises between the hours of 2:00 a.m. and 10:00 a.m. This ordinance shall apply to all private clubs within the city limits of the city of Ozark,Arkansas. (Ord.No. 91-3A, Sec. 1.) 7.16.02 Fine Any party violating the provisions of this ordinance, shall,upon conviction,be fined Five Hundred Dollars ($500.00), and for each subsequent offense and conviction, the parties shall be fined One Thousand Dollars ($1,000.00). (Ord.No. 91-3A, Sec. 2.) 70 7.16.03 Under 18 A. It shall be unlawful for the holder of an On-Premises Permit from the Alcohol Beverage Control, or the permittee's agent or employee to knowingly allow any person under the age of eighteen(18)to enter and remain inside a bar where alcoholic beverages are sold or served unless accompanied by a relative. B. It shall be unlawful for any person under the age of eighteen(18)to enter and remain inside a bar where alcoholic beverages are sold or served unless accompanied by a relative. C. Definitions: Bar—any sole proprietorship,partnership, limited partnership, or corporation inside the Ozark city limits, whose primary business is to sell or serve alcoholic beverages for consumption on premises. Relative—any parent, grandparent, legal guardian, or a spouse that has obtained the age of eighteen(18)years. D. Any party violating the provisions of this ordinance shall be deemed to be guilty of a misdemeanor, and shall, upon conviction, be fined no more than Two Hundred Fifty Dollars ($250.00). (Ord.No. 91-1, Secs. 1-4.) 7.16.04 Selling alcohol A. Definitions Person means either one or more persons, a company, a partnership, a corporation, a syndicate, an association, or any other individual or individuals, whether acting singly or jointly. Beer means any liquor made from malt or any substitute therefore and having an alcoholic content of not to exceed five percent(5%) by weight. Light wines means any fermented liquor made from the juice of grapes, berried, or other fruit or fruits and not having an alcoholic content in excess of five percent (5%)by weight. Intoxicating liquors means vinous malt, ardent, fermented, or distilled spirits having an alcohol content in excess of five percent(5%)by weight. Wholesale dealer means any person who sells beer or light wines to retail dealers in quantities of three gallons or more. 71 S-1 Retail dealer means any person who sells to the consumer light wines or beer in quantities less than sixteen gallons. B. Regulation of sale No person shall sell within the corporate limits of the city of Ozark, Arkansas, any light wines or beer to any minor under the age of twenty- one(2 1) years; any person who shall sell any such beer or light wines to any such minors shall be deemed guilty of a misdemeanor, and upon conviction shall be punished as hereinafter provided,and in addition to such punishment,the City Council may upon the second conviction of any wholesale or retail dealer revoke the license of such dealer,provided further that each separate sale shall constitute a separate offense. C. All persons engaged in the retail of beer or light wines shall open their place of business not earlier than 7:00 a.m. and shall close not later than 11:00 p.m. except taverns may remain open until 12:00 p.m. for on-premise consumption. (Ord.No. 243, Secs. 1-3.) D. Any person who shall violate any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of Five Hundred Dollars ($500.00), and for each subsequent offense and conviction,the person shall be fined One Thousand Dollars ($1,000.00), and in addition to such fine said offender may be imprisoned in jail not to exceed six(6) months. (Ord.No. 96-21, Sec. 1.) CHAPTER 7.20 OUTSIDE FIRE SERVICE Sections: 7.20.01 Charges 7.20.02 Payment paid 7.20.03 Misdemeanor 7.20.01 Charges There shall be a charge of Six Hundred Dollars ($600.00)when the city of Ozark Fire Department is called as the first respondent to any fire outside the city limits of the city of Ozark,Arkansas. (Ord.No. 2009-17, Sec. 1.) 7.20.02 Payment paid The Six Hundred Dollar($600.00)payment shall be made within ninety(90) days of the call. (Ord.No. 2009-17, Sec. 2.) 72 S-2 7.20.03 Misdemeanor If the person, firm partnership, corporation, or limited partnership responsible for such payment does not pay within the ninety (90) day time period, he/it shall be deemed guilty of a misdemeanor and fined Five Hundred Dollars ($500.00),plus costs of said court as assessed by state law and city ordinance. (Ord.No. 2009-17, Sec. 3.) CHAPTER 7.24 OPEN BURNING Sections: 7.24.01 Igniting a fire 7.24.02 Guidelines to outside burning 7.24.03 Attendance at fire 7.24.04 Fire control equipment 7.24.05 Approved burnable items 7.24.06 Exceptions 7.24.07 Conditions for burning 7.24.08 Complaint 7.24.09 Fine 7.24.01 Igniting a fire It shall be unlawful to ignite or maintain any fire in violation of the specific rules and regulations set out in this ordinance. (Ord.No. 2011-5, Sec. 1.) 7.24.02 Guidelines to outside burning Fires started in the city limits of Ozark shall be small in nature and not pose any potential health or property risk because of all surrounding conditions which include but are not limited to the current conditions of the ground or the items to be burned in the fire. Fires shall be at least fifty(50) feet from any building or structure and at no time shall any accelerant be used to start the fire. Any variance from this portion of this ordinance must be approved by the Fire Chief, Assistant Chief or that person designated as a Code Enforcement representative. This portion of the ordinance, as well as 7.24.06, does not apply to areas that are zoned agricultural or in circumstances where the homeowner's residence sits on three(3) acres or more. However, any large fire that would pose a substantial risk to persons or property by the very nature of the burning, needs approval by the Chief,Assistant Chief or Fire Marshal before the burn begins. (Ord. No. 2011-5, Sec. 2.) 73 S-2 7.24.03 Attendance at fire All fires within the city limits of Ozark must be started by and attended by a competent person at all times,which means the fire may not be too large in size to exceed the amount of locations for those tending the fire to properly manage and control it. The fire must be completely extinguished by dark. (Ord.No. 2011-5, Sec. 3.) 7 24 04 Fire control equipment The person overseeing a fire must use all necessary fire control equipment and must have it available, for example, a garden hose, water extinguisher or heavy equipment. Anything other than water must be approved by the Fire Department. (Ord. No. 2011-5, Sec. 4.) 7 24 05 Approved burnable items The burning of plastics, rubber, shingles or anything that will create black smoke is prohibited. This would also include appliances and furniture. Approved items to burn include limbs, grass clippings and other vegetation. (Ord.No. 2011-5, Sec. 5.) 7.24.06 Exceptions The City Council establishes the regulations and procedures for "open burning"within the city limits of the city of Ozark. While most such burning is prohibited or extremely limited,the following are allowed provided sound fire safety practices are observed: A. Non-commercial cooking of food; B. Ceremonial or recreational purposes; C. Barbecues and outdoor fireplaces used in connection with residence, and"burn barrels" for warmth at bona fide construction site. Additionally, burning for bona fide agricultural purposes is allowed in an agricultural zone (A-1) as established by the City Council upon issuance of a permit. (Ord.No. 2011-5, Sec. 6.) 7 24.07 Conditions for burning A person shall not kindle or maintain or authorize to be kindled or maintained any open burning unless conducted and approved in the following manner: A. Open burning shall not be offensive or objectionable because of smoke or odor emissions; B. No burning will be allowed if atmospheric conditions or local circumstances make such fire hazardous (burn ban). Burn bans may be issued for one of the following reasons: 73.1 S-2 1. Wind speeds above 10 miles per hour, if there is a question as to the wind speed, don't burn. High winds can quickly take a controlled fire and make it uncontrolled. 2. Dry conditions or very low relative humidity (below 30%). 3. Governor issued burn ban. 4. County judge issued burn ban. 5. Ozark Fire Chief issued burn ban. 6. Ozark Fire Marshal issued burn ban. (Ord.No. 2011-5, Sec. 7.) 7.24.0 Complaint These rules are in addition to those set out in the State Fire Prevention Code, and the Fire Department may require extinguishment of the fire if a complaint is received, such as smoke blowing into a person's house or other results of the fire causing a nuisance to home or property owners. (Ord.No. 2011-5, Sec. 8.) 7.24.09 Fine Any one found to be in violation of this ordinance shall be guilty of an unclassified misdemeanor. That person shall receive a fine and court costs of not less than Twenty-Five dollars ($25.00)nor more than Two Hundred Fifty Dollars ($250.00). (Ord.No. 2011-5, Sec. 9.) 0 73.2 S-2 CHAPTER 7.28 SOLICITORS, ITINERANT PEDDLERS AND HAWKERS Sections: 7.28.01 Bond 7.28.02 Amount 7.28.03 Damages to bond 7.28.04 Fine 7.28.05 Soliciting on the streets 7.28.01 Bond Solicitors of book and magazine subscriptions, as well as itinerant peddlers,hawkers or any other person engaged in selling or offering for sale merchandise or services at retail within the city to the ultimate consumers and not having a regular,permanent place of business in the city shall enter into a bond with good and sufficient surety payable to the city of Ozark, county of Franklin, state of Arkansas,for the use and benefit of any person damaged by breech thereof,to insure performance of services, delivery of merchandise and proper application of monies received therefore. (Ord.No. 278, Sec. l.) i 7.28.02 Amount This bond shall be made in advance of any active soliciting,peddling, hawking or vending contemplated herein and must be in an amount approved by the City Clerk, which is found as a fact, after considering the sum of money likely to be involved or the value of services to be rendered or merchandise to be delivered,to be adequate to protect the public against fraud or dishonest dealing. However,this bond shall not be in an amount less than Five Hundred Dollars ($500.00). A fee of Five Dollars ($5.00) shall be paid to the city by each person making such bond,to defray the cost of administering this section. The fee so collected shall be deposited in the city general fund. (Ord.No. 278, Sec. 1.) 74 • 7.28.03 Damages to bond A person damaged by breech of the bond provided for herein is entitled to recover on the bond the amount of his damages proved,plus costs in a civil action in any court having jurisdiction. In no event shall the amount of bond required be more than is necessary to effectuate the purpose of this section. The City Clerk is empowered to administer the provisions hereof. (Ord.No. 278, Sec. 1.) 7.28.04 Fine A person who violates any provisions of this ordinance shall be fined not less than Ten Dollars ($10.00) nor more than Two Hundred Fifty Dollars($250.00) or imprisoned for not more than thirty(30)days or both. Each violation is a separate offense. (Ord.No. 278, Sec. 2.) 7.28.05 Soliciting on the streets A. No person, organization, firm or other party shall solicit donations on the streets of Ozark, Arkansas, for any public charity or religious purpose whatsoever without having first secured a permit from the Mayor before doing any such soliciting. B. Before any person, organization, firm or group of persons shall be permitted to solicit as provided in the preceding section,they shall submit in writing to the Mayor an application stating the name and headquarters address of the group or organization they represent and solicit for, and the names and addresses of any and all solicitors so engaged or to become engaged in soliciting in and upon the streets of the city of Ozark. C. The Mayor is hereby empowered to permit any such organization, firm or other group or parry to solicit religious or charitable contributions upon the streets. Such permit so to do shall be issued in writing by the Mayor, shall be attested by the City Clerk and shall bear and show an impression of the city seal in addition to the signatures of the city Mayor and City Clerk. No charge of fee shall be made for any such permit,however, no more than two (2)permits per year shall be issued to any one group or charitable/religious organization. D. It shall be unlawful for any person obtaining a permit pursuant to this ordinance to solicit such donations under this section in a place or in a manner which blocks or obstructs vehicular traffic or in any way creates a hazardous driving condition. The Chief of Police or his officers, or the Mayor shall have authority to revoke the permit issued pursuant to this section of any person, firm or corporation who solicits in a manner which blocks and/or obstructs vehicular traffic or creates a hazardous driving condition. The revocation of such permit shall not preclude any other penalties in this ordinance. . 75 E. Any person, organization, firm, group or party failing to comply with this ordinance shall be guilty of a misdemeanor and upon conviction shall be fined not less than Ten Dollars($10.00)nor more than One Hundred Dollars ($100.00), together with the costs of the proceeding. (Ord.No. 2006-15, Secs. 1-5.) CHAPTER 7.32 TRAPPING Sections: 7.32.01 Permission 7.32.02 Compliance 7.32.03 Fine 7.32.01 Permission It shall be unlawful for any person to use, set or run snares or traps for the purpose of taking or attempting to take fur-bearing animals within the city limits of the city of Ozark, Arkansas, except beaver may be trapped for the purpose of saving trees or undamming streams to prevent flooding within the city limits. Any person, corporation or firm who desires to trap beaver for the above stated purpose shall be required to seek permission from the City Council of the city of Ozark at a regular scheduled City Council meeting. If said permission is granted, said trap must have the name of the person doing the trapping on the trap in such a manner so that it can not be easily removed thereform. Said trap or snare must be visited each day that it is in place and may not be used more then five (5) days in succession without additional permission being sought from the City Council,of the city of Ozark,Arkansas. (Ord.No. 81-5, Sec. 1.) 7.32.02 Compliance Any trapping done within the city limits of the city of Ozark through permission of the above sections shall also have to be done in compliance with all laws of the state of Arkansas and the Game and Fish Commission. (Ord.No. 81-5, Sec. 2.) 7.32.03 Fine Any person, firm, corporation or agent of either of them who violates any of the provisions of this ordinance shall be deemed guilty of a misdemeanor and upon issuance of a citation and conviction shall be fined not less than Twenty-Five Dollars ($25.00) and not more than One Thousand Dollars ($1,000.00)and are sentences to serve a term in the county jail for not more than thirty(30) days. Each trap or snare set in violation of this ordinance shall be deemed a separate offense. Any and all traps found in violation of this ordinance shall be confiscated,marked and sold at public auction by the Chief of Police of the city of Ozark, Arkansas. (Ord.No. 81-5, Sec.3.) 76 . CHAPTER 7.36 FIREWORKS Sections: 7.36.01 Unlawful 7.36.02 Other occasions 7.26.03 Fine 7.36.01 Unlawful A. It shall be unlawful for any person or persons to sell, barter, exchange or giveaway or to ignite, fire, shoot, or explode within the corporate limits of the city of Ozark,Arkansas, any firecracker, Roman candle, or any other,kind of species of fireworks, or explosives commonly used and ignited or exploded for amusement subject to the following conditions: I. Any person, corporation, partnership, or sole proprietorship selling any of the above fireworks shall obtain a permit from the City Clerk which may be used for a period of eight(8) days, such eight(8) days being six(6) days prior to the 4t' day of July of each year and one (1) day thereafter, including the 4t'of July. 2. Any individual, corporation, partnership, or sole proprietorship that explodes fireworks may do so during the same ten(10) day period but under no circumstances shall any fireworks be exploded later than 10:00 p.m. on any day of the ten(10)day period with the exception of the night of the 0' day of July, and fireworks may be exploded until 12:00 midnight on that date only. 3. No stands may be erected, set up,put in place, or sold from prior to seven (7) days before the 4"' day of July of each year. All stands for the sale of fireworks are to be removed no later than the 6t'day of July of each year. B. 1. It shall be unlawful for any person or persons to sell, barter, exchange or giveaway or to ignite, fire, shoot, or explode within the corporate limits of the city of Ozark,Arkansas, any fireworks commonly known as bottle rockets and which are commonly sold by the dozen or by the gross (12 dozen). This specific prohibition only applies to the small bottle rockets which are intended to be shot into the air and then give a single report. (Ord.No. 2003-14, Sec. l.) 77 2. Any person or persons selling,bartering, exchanging or giving away, igniting, firing, shooting or.exploding said explosives commonly known as"Bottle Rockets" as above defined in Section(1), and having same within the city limits of Ozark,Arkansas, shall be guilty of an unclassified misdemeanor and shall be fined the sum of Seventy-Five Dollars ($75.00) plus standard court costs, and each instance in violation of this ordinance shall constitute a separate offense by the offender and a separate fine as punishment for each separate offense shall be assessed. (Ord.No. 2003- 14, Sec. 4.) 7:36.02 Other occasions If any group, club, association, school, church, or corporation desires to conduct a public display of fireworks at any time otherwise prohibited by Ord.No. 95- 35, notification must be presented to the Mayor's office at least fifteen(15) days prior to the public display, and all necessary state and federal permits shall be obtained and proof of same presented to City Hall prior to the public display. (Ord.No. 99-13, Sec. 2.) 7.36.03 Fine Any person, corporation,partnership, or sole proprietorship violating this ordinance shall be guilty of a misdemeanor and fined the amount of Seventy-Five Dollars ($75.00). (Ord.No. 96-7, Sec. 3.) CHAPTER 7.40 SEXUALLY ORIENTED BUSINESSES Sections: 7.40.01 Rationale and findings 7.40.02 Definitions 7.56.03 Classifications 7.40.04 License required 7.40.05 Issuance of license 7.40.06 Fees 7.40.07 Inspection 7.40.08 Expiration of license 7.40.09 Suspension 7.40.10 Revocation 7.40.11 Hearing; license denial, suspension,revocation; appeal 7.40.12 Transfer of license 7.40.13 Hours of operation 7.40.14 Regulations pertaining to exhibition of sexually explicit films on premises 7.40.15 Loitering and exterior lighting and monitoring requirements 7.40.16 Penalties and enforcement 78 7.40.17 Applicability of ordinance to existing businesses 7.40.18 Prohibited activities 7.40.19 Scienter required to prove violation or business licensee liability 7.40.20 Failure of city of Atkins, Arkansas to meet time frame not to risk applicant/licensee rights 7.40.21 Location of sexually oriented businesses 7.40.01 Rationale and findings A. Purpose It is the purpose of this section to regulate sexually oriented businesses to promote the health, safety and general welfare of the citizens of the city of Ozark, Arkansas, and to establish reasonable and uniform regulation to prevent the deleterious secondary effects of sexually oriented businesses within the city of Ozark, Arkansas. The provisions of this ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material. B. Findings and rationale Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to the Ozark City Council, and on findings, interpretation, and narrowing constructions incorporated in the cases of city of Littleton b. Z.J. Gifts D-4, L.L.C. 124 S.Ct. 2219 (June 7, 2004); city of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); Pap's A.M. v. city of Erie, 529 U.S. 277 (2000); city of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) Young v. American Mini Theatres, 426 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue, 409 U.S. 109 (1972); and World Wide Video of Washington, Inc. v. city of Spokane, 368 F. 3d 1186 (9t' Cir. 2004); Ben's Bar, Inc. c. Village of Somerset, 316 F. 3d 702 (7t` Cir. 2003); And based upon reports concerning secondary effects occurring in and around sexually oriented businesses, including,but not limited to Austin, Texas— 1986; Indianapolis, Indiana— 1984; Garden Grove, California— 1991; Houston, Texas— 1983, 1997; Phoenix,Arizona— 1979, 1995-98; Chattanooga Tennessee— 1999- 2003; Minneapolis,Minnesota— 1980; Los Angeles, California— 1997; Whittier, California— 1978; Spokane, Washington—2001; St. Cloud,Minnesota— 1994; Littleton, Colorado 2004; Oklahoma City, Oklahoma— 1986;Dallas, Texas— 1997; Greensboro,North Carolina—2003; Amarillo, Texas— 1997;New York New York Times Square— 1994; and Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses (June 6, 1989, state of Minnesota). 79 The Ozark City Council finds: A. Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including,but not limited to, personal and property crimes,prostitution,potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking,negative impacts on surrounding properties,urban blight, litter, and sexual assault and exploitation. B. Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented business,to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area. C. Each of the foregoing negative secondary effects constitutes a harm which the city of Ozark, Arkansas,has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the city of Ozark,Arkansas's rationale for this ordinance, exists independent of any comparative analysis between sexually oriented and non- sexually oriented businesses. Additionally, the city of Ozark,Arkansas's interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the city of Ozark, Arkansas, and the City Council of the city of Ozark,Arkansas, finds that the cases and documentation including, but not limited to those set out hereinabove, relied on in this ordinance are reasonably believed to be relevant to said secondary effects. (Ord.No. 2006-5, Sec. 1.) 7.40.02 Definitions For the purposes of this ordinance,the words and phrases defined in the sections hereunder shall have the meanings herein respectively ascribed to them unless a different meaning is clearly indicated by the context. Adult bookstore or Adult video store means a commercial establishment which as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following: books magazines,periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides or other visual representations which are characterized by their emphasis upon the display of"specified sexual activities or specified anatomical areas." Adult cabaret means a nightclub,bar,juice bar,restaurant,bottle club, or other commercial establishment,whether or not alcoholic beverages are served, which regularly features persons who appear semi-nude. Adult motel means a motel,hotel, or similar commercial establishment which: • 80 A. offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films,motion pictures,video cassettes, other photographic reproductions, or live performances which are characterized by the display of"specified sexual activities" or"specified anatomical areas"; and which advertises the availability of such material by means of a sign visible from the public right-of-way, or by means of any on or off- premises advertising,including but not limited to,newspapers,magazines, pamphlets or leaflets,radio or television; or B. offers a sleeping room for rent for a period of time that is less than 10 hours; or C. allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours. Adult motion picture theater means a commercial establishment where films,motion pictures, video cassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of"specified sexual activities" or "specified anatomical areas" are regularly shown to more than five persons for any form of consideration. Characterized by means describing the essential character or quality of an item. As applied in this ordinance, no business shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-18 or R by the Motion Picture Association of America. Employ, employee and employment describe and pertain to any person who performs any service on the premises of a sexually oriented business, on a full time or part time, or contract basis,whether or not the person is denominated an employee, independent contractor, agent, or otherwise. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises. Enforcement Officer means the city of Ozark, Arkansas'Police Chief or Code Enforcement Officer. Establish or establishment shall mean and include any of the following: A. The opening or commencement of any sexually oriented business as a new business; B. The conversion of an existing business,whether or not a sexually oriented business,to any sexually oriented business; or C. The addition of any sexually oriented business to any other existing sexually oriented business. 81 D. The addition of any sexually oriented business to any other existing business not initially sexually oriented. Hearing body shall mean the City Council of the city of Ozark,Arkansas. Influential interest means any of the following A. the actual power to operate the sexually oriented business or control the operation, management or policies of the sexually oriented business or legal entity which operates the sexually oriented business, B. ownership of a financial interest of thirty percent(30%) or more of a business or of any class of voting securities of a business, or C. -holding an office (e.g.,president,vice-president, secretary,treasurer, managing member, managing director,etc.) in a legal entity which operates the sexually oriented business. Licensee shall mean a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually oriented business license. In case of an "employee," it shall mean the person in whose name the sexually oriented business employee license has been issued. Municipality body means the City Council of the city of Ozark,Arkansas. Municipality type means city of Ozark,Arkansas. Nudity or a state of nudity means the showing of the human male or female genitals, public area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola. Operated or cause to operate shall mean to cause to function or to put or keep in a state of doing business. "Operator" means any person on the premises of a sexually oriented business who causes that business to function or who puts or keeps in operation the business or who is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner,part-owner, or licensee of the business. Person shall mean individual,proprietorship,partnership, corporation, association, or other legal entity. I Premises means the real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to,the sexually is 82 oriented business,the grounds,private walkways, and parking lots and/or parking garages adjacent thereto,under the ownership, control,or supervision of the licensee, as described in the application for a business license pursuant to 7.56.04 of this ordinance. Principal purpose means that the commercial establishment: A. has a substantial portion of its displayed merchandise which consists of said items, or B. has a substantial portion of the wholesale value of its displayed merchandise which consists of said items,or C. has a substantial portion of the retail value of its displayed merchandise which consists of said items, or D. derives a substantial portion of its revenues from the sale or rental, for any form of consideration of said items; or E. maintains a substantial section of its interior business space for the sale or rental or said items; or F. maintains an "adult arcade," which means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting "specified sexual activities" or "specified anatomical areas." Regularly means and refers to the consistent and repeated doing of the act so described. Semi-nude model studio means a place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This definition does not apply to any place where persons appearing in a state of semi- nudity did so in a modeling class operated: A. By a college,junior college, or university supported entirely or partly by taxation; B. By a private college or university which maintains and operates educational programs in which credited are transferable to college,junior college, or university supported entirely or partly by taxation; or C. In a structure: 83 1. Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and Z. Where, in order to participate in a class a student must enroll at least three days in advance of the class. Semi-nude or state of semi-nudity means the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at the point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast,but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress,blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part. Sexual device means any three (3) dimensional object designed and marketed for stimulation of the male or female human genital organ or anus or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos,vibrators, penis pumps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy. Sexual device shop manes a commercial establishment that regularly features sexual devices. Nothing in this definition shall be construed to include any pharmacy, drug store, • medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or service, nor shall this definition be construed to include commercial establishments which do not restrict access to any portion of their premises by reason of age. Sexual encounter center shall mean a business or commercial enterprise that, as one of its principal business purposes,purports to offer for any form of consideration,physical contact in the form of wrestling or tumbling between persons of the opposite sex when one or more of the persons is semi-nude. Sexually oriented business means an "adult bookstore or adult video store," and "adult cabaret," an "adult motel," an "adult motion picture theater," a"semi-nude model studio," "sexual device shop," or a"sexual encounter center." Specified anatomical areas means and includes: A. Less than completely and opaquely covered; human genitals,pubic region, buttock; and female breast below a point immediately above the top of the areola; and B. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. 84 Specified criminal activity means: A. any of the following specified crimes for which less than five years elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date: 1. Sex crimes as defined in A.C.A. 5-14-101, et seq. 2. Prostitution crimes as defined in A.C.A. 5-70-101, et seq. 3. Obscenity crimes as defined in A.C.A. 5-68-101, et seq. 4. Drug crimes as defined in A.C.A. 5-64-101, et seq. 5. Racketeering as defined in A.C.A. 5-74-101, et seq. B. any attempt, solicitation, or conspiracy to commit one of the foregoing offenses; or C. any offense in another jurisdiction that, had the predicate act(s)been committed in Arkansas,would have constituted any of the foregoing offenses. D. any offense which requires registration as a sexual offender or which requires a name to be placed on any registry for sex offenders or any type of abuse, including the Central Registry. Specified sexual activity means any of the following: A. intercourse, oral copulation, masturbation or sodomy; or B. excretory functions as a part of or in connection with any of the activities described in(A) above. Substantial means at least thirty-five percent(35%) of the item(s) so modified. Transfer of ownership or control of a sexually oriented business shall mean any of the following: A. the sale, lease, or sub-lease of the business; B. The transfer of securities which constitute an influential interest in the business, whether by sale, exchange, or similar means, or C. The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control. 85 Viewing room shall mean the room,booth, or area where a patrol of sexually oriented business would ordinarily be positioned while watching a film,video cassette, or other video reproduction. (Ord.No. 2006-5, Sec. 2.) 7.40.03 Classification The classifications for sexually oriented businesses shall be as follows: A. Adult bookstores or adult video stores; B. Adult cabarets; C. Adult motel; D. Adult motion picture theater; E. Semi-nude model studio; F. Sexual device shop; G. Sexual encounter center. (Ord.No. 2006-5, Sec. 3.) 7.40.04 License required A. It shall be unlawful for any person to operate a sexually oriented business in the city of Ozark without a valid sexually oriented business license. B. It shall be unlawful for any person to be an "employee" as defined in this ordinance,of a sexually oriented business in the city of Ozark without a valid sexually oriented business employee license. C. An applicant for a sexually oriented business license or sexually oriented business employee license shall be filed in person at the office of the city of Ozark Municipal Building. A completed application will be made on a form provided by the City Clerk with copies to the Ozark Chief of Police and Franklin County Sheriff. The application shall be considered complete when it contains, for each person required to sign the application,the information and/or items required in section 1 through 7 below, accompanied by the appropriate fee identified in section 6. 1. The applicant's full true name and any other names used by the applicants in the preceding five (5) years. 2. Current business address or another mailing address of the applicant. 3. Written proof of age, in the form of a driver's license or a copy of a birth certificate accompanied by a picture identification document issued by a governmental agency. 86 4. If the application is for a sexually oriented business license,the business name, location, legal description,mailing address and phone number of the sexually oriented business. 5. If the application is for a sexually oriented business license,the name and business address of the statutory agent or other agent authorized to receive service of process. 6. A statement of whether an applicant has been convicted of or has pled guilty or nolo contendere to a specified criminal activity as defined in this ordinance, and if so, each specified criminal activity involved, including the date,place, and jurisdiction of each as well as the dates of conviction and release from confinement,where applicable. 7. A statement of whether any sexually oriented business in which applicant has had an influential interest,has, in the previous five (5) years (and at the time during which the applicant had the influential interest): a. been declared by a court of law to be a nuisance; or b. been subject to a court order of closure or padlocking. 8. Proof of delivery of copies to the city and county law enforcement heads as defined hereinabove either by certified mail,return receipt requested, or proof of hand delivery containing the signature thereon by an agent or employee of such department authorized to accept such information. The information provided pursuant to section 1 through 8 of this subsection shall be supplemented in writing by certified mail,return receipt requested,to the Ozark Chief of Police, and Franklin County Sheriff within ten(10) working days of change of circumstances which would render the information originally submitted false or incomplete. D. An application for a sexually oriented business license shall be accompanied by a legal description of the property where the business is located and a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but shall be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six(6) inches. Applicants who are required to comply with section 14 and 18 of this ordinance shall submit a diagram indicating that the interior configuration meets the requirements of those sections. E. If a person who wishes to operate a sexually oriented business is an individual,he shall sign the application for a license as applicant. If a person who wishes to 87 operate a sexually oriented business is other than an individual, each person with • an influential interest in the business shall sign the application for a license as applicant. Each applicant must be qualified under section 5 and each applicant shall be considered a licensee if a license is granted. F. The information provided by an applicant in connection with an application for a license under this ordinance shall be maintained by the office of the Ozark City Clerk on a confidential basis, and such information may be disclosed only as may be required, and only to the extent required,by court order. (Ord.No. 2006-5, Sec. 4.) 7.40.05 Issuance of license A. Upon the filing of a completed application under 7.40.04 (C) sexually oriented business license,the Ozark City Clerk shall immediately issue a temporary license to the applicant, which temporary license shall expire upon the final decision of the city of Ozark, Arkansas, to deny or grant an annual license. Within twenty (20) days of the filing date of a completed sexually oriented business license application,the Ozark City Clerk shall issue a license to the applicant or issue to the applicant a letter of intent to deny the application. The Ozark City Clerk shall issue a license unless: 1. An applicant is less than eighteen(18)years of age. 2. An applicant has failed to provide information as required by 7.40.04 for issuance of a license or has falsely answered a question or request for information on the application form. 3. The license application fee required by this ordinance has not been paid. 4. The sexually oriented business, as defined herein, is not in compliance with the interior configuration requirements of this ordinance or is not in compliance with locational requirements of this ordinance or the locational requirements of any other part of the city of Ozark Code. 5. Any sexually oriented business in which the applicant has had an influential interest, has, in the previous five (5)years (and at a time during which the applicant had the influential interest): a. been declared by a court of law to be a nuisance; or b. been subject to an order of closure or padlocking. 6. An applicant has been convicted of or pled guilty or nolo contendere to a specified criminal activity, as defined in this ordinance. 88 B. Upon the filing of a completed application under 7.40.04 (C) for a sexually oriented business employee license,the Ozark City Clerk shall immediately issue a temporary license to the applicant,which temporary license shall expire upon the final decision of the city of Ozark,Arkansas,to deny or grant an annual license. Within twenty (20) days of the filing date of a completed sexually oriented business employee license application,the City Clerk shall either issue a license or issue a written notice of intent to deny a license to the applicant. The City Clerk shall approve the issuance of a license unless: 1. The applicant is less than eighteen(18) years of age. 2. The applicant has failed to provide information as required by 7.40.04 for issuance of a license or has falsely answered a question or request for information of the application form. 3. The license application fee required by this ordinance has not been paid. 4. Any sexually oriented business in which the applicant has had an influential interest, has, in the previous five (5)years (and at a time during which the applicant had the influential interest). a. been declared by a court of law to be a nuisance; or b. been subject to an order of closure or padlocking. 5. The applicant has been convicted of or pled guilty or nolo contendere to a specified criminal activity, as defined in this ordinance. C. The license, if granted, shall state on its face the name of the person or persons to whom it is granted,the number of the license issued to the licensee(s),the expiration date, and, if the license is for sexually oriented business,the address of the sexually oriented business. The sexually oriented business license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be read at any time. A sexually oriented business employee shall keep the employee's license on his or her person or on the premises where the licensee is then working or performing. (Ord.No. 2006-5, Sec. 5.) 7.40.06 Fees The initial license and annual renewal fees for sexually oriented business licenses and sexually oriented business employee licenses shall be as follows: Three Hundred Dollars ($300.00) for the initial fee for a sexually oriented business license and Three Hundred Dollars ($300.00) for annual renewal; Seventy-Five Dollars ($75.00) for the initially sexually oriented business employee license and Seventy-Five Dollars ($75.00) for the annual renewal. All fees to be paid on or before January 31St of each year. (Ord.No. 2006-5, Sec. 6.) • 89 7.40.07 Inspection A. Sexually oriented businesses and sexually oriented business employees shall permit the Code Enforcement Officer and his or her agents to inspect, from time to time on an occasional basis,the portions of the sexually oriented business premises where patrons are permitted, for the purpose of ensuring compliance with the specific regulations of this ordinance, during those times when the sexually oriented business is occupied by patrons or is open to the public. This section shall be narrowly construed by the city of Ozark,Arkansas,to authorize reasonable inspections of the licensed premises pursuant to this ordinance,but not to authorize a harassing or excessive pattern of inspections. B. The provisions of this section do not apply to areas of an adult motel which are currently being rented by a customer for use as a permanent or temporary habitation. (Ord.No. 2006-5, Sec. 7.) 7.40.08 Expiration of license A. Each license shall remain valid for one calendar year unless otherwise suspended or revoked. Such license may be renewed only by making application and payment of a fee as provided in 7.40.04 and 7.40.06. B. Application for renewal should be made pursuant to the procedures set forth in i 7.40.04 at least ninety (90) days before the expiration date, and when made less than ninety (90) days before the expiration date,the expiration of the license will not be affected. (Ord.No. 2006-5, Sec. 8.) 7.40.09 Suspension A. - The city of Ozark, Arkansas, shall issue a written letter of intent to suspend a sexually oriented business license for a period not to exceed thirty (30) days if the sexually oriented business license has knowingly violated this ordinance or has knowingly allowed an employee to violate this ordinance. B. The city of Ozark, Arkansas, shall issue a written letter of intent to suspend a sexually oriented business employee license if the employee has knowingly violated this ordinance. (Ord.No. 2006-5, Sec. 9.) 7.40.10 Revocation A. The city of Ozark, Arkansas, shall issue a letter of intent to revoke a sexually oriented business license or a sexually oriented business employee license, as applicable, if the licensee knowingly violated this ordinance or has knowingly allowed an employee to violate this ordinance and the licensee's license has been suspended within the previous twelve-month(12)period. 90 B. The city of Ozark, Arkansas, shall issue written intent to revoke a sexually oriented business license or a sexually oriented business employee license as applicable,if: 1. The licensee has knowingly given false information in the application for the sexually oriented business license. 2. The licensee has knowingly or recklessly engaged in or allowed possession, use, or sale of controlled substances on the premises. 3. The licensee has knowingly or reckless engaged in or allowed prostitution on the premises. 4. The licensee knowingly or recklessly operated the sexually oriented business during a period of time when the license was finally suspended or revoked; or 5. The licensee has knowingly or recklessly engaged in or allowed any specified sexual activity to occur in or on the licensed premises. C. The fact that any relevant conviction is being appealed shall have no effect on the revocation of the license, provided that, if any conviction which serves as a basis of a license revocation is overturned or reversed on appeal,that conviction shall be treated as null and of no effect for revocation purposes. D. When, after the notice and hearing procedure described in 7.40.11,the Ozark City Council revokes a license,the revocation shall continue for one (1)year and the licensee shall not be issued a sexually oriented business license or sexually oriented business employee license for one (1)year from the date revocation becomes effective. (Ord.No. 2006-5, Sec. 10.) 7.40.11 Hearing: denial, revocation, and suspension; appeal A. When the Code Enforcement Officer issues a written notice of intent to deny, suspend, or revoke a license,the City Clerk shall immediately send such notice, which shall include the specific grounds under this ordinance for such action,to the applicant or licensee (respondent)by personal delivery or certified mail. The notice shall be directed to the most current business address or other mailing address on file with the City Clerk for the respondent. The notice shall specify a date,not less than ten(10) days nor more than twenty(20) days after the date the notice is issued on which the Ozark City Council shall conduct a hearing on the Code Enforcement Officer's intent to deny, suspend, or revoke the license. 91 At the hearing,the respondent shall have the opportunity to present all of respondent's arguments and to be represented by counsel,present evidence and witnesses on his or her behalf, and cross-examine any of the Code Enforcement Officer's witnesses. The Code Enforcement Officer shall also be represented by counsel, and shall bear the burden of proving the grounds for denying, suspending, or revoking the license. The hearing shall take no longer than two(2) days, unless extended at the request of the respondent to meet the requirements of due process and proper administration of justice. The Ozark City Council shall issue a written decision, including specific reasons for the decision pursuant to this ordinance,to the respondent within five (5) days after the hearing. If the decision is to deny, suspend, or revoke the license,the decision shall not become effective until the thirtieth(30'h) day after it is rendered, and the decision shall include a statement advising the respondent of the right to appeal such decision to a court of competent jurisdiction. If the Ozark City Council's decision finds that no ground exist for denial, suspension, or revocation of the license, the Ozark City Council shall, contemporaneously with the issuance of the decision, order the Code Enforcement Officer to immediately withdraw the intent to deny, suspend, or revoke the license and to notify the respondent in writing by certified mail of such action. If the respondent is not yet licensed,the Code Enforcement Officer shall contemporaneously therewith issue the license to the applicant. B. If any court action challenging the Ozark City Council's decision is initiated,the Ozark City Council shall prepare and transmit to the court a transcript of the hearing within ten(10) days after receiving written notice of the filing of the court action. The Ozark City Council shall consent to expedited briefing and/or disposition of the action, shall comply with any expedited schedule set by the court, and shall facilitate prompt judicial review of the proceedings. The following shall apply to any sexually oriented business that is in operation as of the effective date of this ordinance. Upon the filing of any court action to appeal, challenge,restrain, or otherwise enjoin the city of Ozark,Arkansas' enforcement of the denial, suspension or revocation, the city of Ozark, Arkansas, shall immediately issue the respondent to continue operation of the sexually oriented business or to continue employment as a sexually oriented business employee and will expire upon the court's entry of a judgment on the respondent's appeal or other action to restrain or otherwise enjoin the city of Ozark, Arkansas' enforcement. (Ord.No. 2006-5, Sec. 11.) 7.40.12 Transfer of license A licensee shall not transfer his or her license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the sexually oriented business license application. (Ord.No. 2006-5, Sec. 12.) 92 7.40.13 Hours of operation No sexually oriented business shall be or remain open for business between 12:00 midnight and 6:00 a.m. on any day. (Ord.No. 2006-5, Sec. 13.) 7 40 14 Regulations pertaining to exhibition of sexually explicit films or videos A. A person who operates or causes to be operated a sexually oriented business, other than an adult motel,which exhibits on the premises in a viewing room of less than one hundred fifty (150) square feet of floor space, a film, video cassette, or other video reproduction characterized by an emphasis on the display of specified sexual activities or specified anatomical areas shall comply with the following requirements. 1. Each application for a sexually oriented business license shall contain a diagram of the premises showing the location of all operator's stations, viewing rooms, overhead lighting fixtures,video cameras and monitors installed for monitoring purposes and restrooms, and shall designate all portions of the premises in which patrons will not be permitted. Restrooms shall not contain video reproduction equipment. The diagram shall also designate the place at which the permit will be conspicuously posted, if granted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram shall be oriented to the north or to some designated street or object and shall be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of all areas of the interior or the premises to an accuracy of plus or minus six (6) inches. The Code Enforcement Officer may waive the foregoing diagram for renewal applications if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared. 2. It shall be the duty of the operator, and of any employees present on the premises,to ensure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to paragraph 1 of this subsection. 3. The interior premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access at an illumination of not less than five (5) foot candles as measured at the floor level. It shall be the duty of the operator, and of any employees present on the premises,to ensure that the illumination described above is maintained at all times that the premises is occupied by patrons or open for business. 93 4. It shall be the duty of the operator, and of any employees present on the premises,to ensure that no sexual activity occurs in or on the licensed premises. 5. It shall be the duty of the operator to post conspicuous signs in well- lighted entry areas of the business stating all of the following: a. That the occupancy of viewing rooms is limited to one person b. That sexual activity on the premises is prohibited. C. That the making of openings between viewing rooms is prohibited. d. That violators will be required to leave the premises. e. That violations of subparagraphs (a), (b)and(c) of this paragraph are unlawful 6. It shall be the duty of the operator to enforce the regulations articulated in (5) (a)through(e) above. 7. The interior of the premises shall be configured in such a manner that there is an unobstructed view from an operator's station of every area of the premises, including the interior of each viewing room but excluding restrooms, to which any patron is permitted access for any purpose. An operator's station shall not exceed thirty-two (32) square feet of floor area. If the premises has two (2)or more operator's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the operator's stations. The view required in this paragraph must be by direct line of sight from the operator's station. It is the duty of the operator to ensure that at least one employee is on duty and situated in each operator's station at all times that any patron is on the premises. It shall be the duty of the operator, and it shall also be the duty of any employees present on the premises,to ensure that the view area specified in this paragraph remains unobstructed by any doors, curtains, walls,merchandise, display racks or other materials or enclosures at all times that any patron is present on the premises. It shall be unlawful for a person having a duty under this section to knowingly fail to fulfill that duty. (Ord.No. 2006-5, Sec. 14.) 7.40.15 Loitering, exterior lighting,visibility, and monitoring requirements A. It shall be the duty of the operator of a sexually oriented business to: 94 1. post conspicuous signs stating that no loitering is permitted on such • property; 2. designate one or more employees to monitor the activities of persons on such property by visually inspecting such property at least once every ninety(90) minutes or inspecting such property by use of video cameras and monitors; and 3. provide lighting of the exterior premises to provide for visual inspection or video monitoring to prohibit loitering. If used,video cameras and monitors shall operate continuously at all times that the premises are open for business. The monitors shall be installed within an operator's station. B. It shall be unlawful for a person having a duty under this section to knowingly fail to fulfill that duty. C. No sexually oriented business shall erect a fence, wall, or other barrier that prevents any portion of the parking lot(s)for the establishment from being visible from a public right-of-way. (Ord.No. 2006-5, Sec. 15.) 7.40.16 Penalties and enforcement A. A person who knowingly violates, disobeys, omits,neglects, or refuses to comply with or resists the enforcement of any of the provisions of this ordinance shall be guilty of a Class A misdemeanor, and,upon conviction, shall be punishable by 0 days to 1 years in the Franklin County Jail and/or 0 to $1,000.00 fine. Each day a violation is committed, or permitted to continue, shall constitute a separate offense and shall be fined as such. B. The city of Ozark,Arkansas'legal counsel is hereby authorized to institute civil proceedings necessary for the enforcement of this ordinance to prosecute, restrain, or correct violations hereof. Such proceedings, including injunction, shall be brought in the name of the city of Ozark, Arkansas,provided,however,that nothing in this section and no action taken hereunder, shall be held to exclude such criminal or administrative proceedings as may be authorized by other provisions of this ordinance, or any of the laws or ordinances in force in the city of Ozark,Arkansas, or to exempt anyone violating this code or any part of the said laws from any penalty which may be incurred. (Ord.No. 2006-5, Sec. 16.) 7 40 17 Applicability of ordinance to existing businesses It is unlawful for a sexually oriented business to knowingly violate the following regulations or to knowingly allow an employee or any other person to violate the following regulations. 95 A. It shall be a violation of this ordinance for a patron, employee,or any other person to knowingly or intentionally, in a sexually oriented business, appear in a state of nudity,regardless of whether such public nudity is expressive in nature. B. It shall be a violation of this ordinance for a person to knowingly or intentionally, in a sexually oriented business, appeal in a semi-nude condition unless the person is an employee who,while semi-nude,remains at least six (6)feet from any patron or customer and on a stage at least eighteen(18) inches from the floor in a room of at least one thousand(1,000) square feet. C. It shall be a violation of this ordinance for any employee who regularly appears semi-nude in a sexually oriented business to knowingly or intentionally touch a customer or the clothing of a customer on the premises of a sexually oriented business. D. It shall be a violation of this ordinance for any person to sell,use, or consume alcoholic beverages on the premises of a sexually oriented business. E. A sign in a form to be prescribed by the Code Enforcement Officer, and summarizing the provisions of paragraphs (A), (B), (C) and(D) of this section, shall be posted near the entrance of the sexually oriented business in such a manner as to be clearly visible to patrons upon entry. (Ord.No. 2006-5, Sec. 18.) 7 40 19 Scienter required to prove violation or business licensee liability This ordinance does not impose strict liability. Unless a culpable mental state is otherwise specified herein, a showing of a knowing or reckless mental state is necessary to establish a violation of a provision of this ordinance. Notwithstanding anything to the contrary, for the purposes of this ordinance, an act by an employee that constitutes grounds for suspension or revocation of that employee's license shall be imputed to the sexually oriented business licensee for the purposes of finding a violation of this ordinance, or for purposes of license denial, suspension, or revocation, only if an officer, director, or general partner, or a person who managed, supervised,or controlled the operation of the business premises,knowingly or recklessly allowed such act to occur on the premises. It shall be a defense to liability that the person to whom liability is imputed was powerless to prevent the act. (Ord.No. 2006-5, Sec. 19.) 7 40 20 Failure of the city of Ozark Arkansas to meet deadline not to risk Mlicant/licensee rights In the event that a city of Ozark,Arkansas, official is required to take an act or do a thing pursuant to this ordinance within a prescribed time, and fails to take such act or do such thing within the time prescribed, said failure shall not prevent the exercise of constitutional rights of an applicant or licensee. If the act required of the city of Ozark, Arkansas, official under this ordinance, and not completed in the time prescribed, includes approval of condition(s)necessary for approval by the city of Ozark,Arkansas, of an applicant or licensee's application for sexually oriented business license or a sexually oriented business employee's license (including a renewal),the license shall be deemed granted and the business or 96 employee allowed to commence operations or employment the day after the deadline for the city of Ozark,Arkansas' action has passed. (Ord.No. 2006-5, Sec. 20.) 7 40 21 Location of sexually oriented businesses A. Sexually oriented businesses shall not be required to obtain a conditional use permit. Sexually oriented businesses shall be permitted subject to the following limitations: B. It shall be unlawful to establish, operate, or cause to be operated a sexually oriented business in the city of Ozark,unless said sexually oriented business is at least: 1. One thousand(1000) feet from any parcel occupied by another sexually oriented business or by a business licensed by the state of Arkansas to sell alcohol at the premises; and 2. One thousand(1000) feet from any parcel occupied by a house of worship, licensed day-care center, public or private elementary or secondary school, public bar, or any residence. C. For the purpose of this section, measurements shall be made in a straight line in all directions without regard to intervening structures or objects, from the closest part of any structure, including signs and roof overhangs,used in conjunction with the sexually oriented business to the closest point on a property boundary or right- of-way associated with any of the land use(s)identified in section A(1)—A(2) above. D. Notwithstanding anything to the contrary in the city of Ozark's Code, a non- conforming sexually oriented business, lawfully existing in all respects under law prior to the effective date of this ordinance,may continue to operate for three (3) years following the date in order to make a reasonable recoupment of its investment in its current location. At the conclusion of said three(3) years, the use will no longer be recognized as a lawful non-conforming use,provided that a non-conforming sexually oriented business may apply for one or more six-month extensions of the original two-year period upon a showing financial hardship. An application for an initial extension based upon financial hardship ("hardship exception") shall be made at least sixty(60) days before the conclusions of the aforementioned three-year(3)period. If a hardship extension is granted, subsequent applications or hardship extensions shall be made at least sixty(60) days before the conclusion of the non-conforming sexually oriented business's current extension period. 97 E. An application for a hardship extension shall be filed in writing with the Code Enforcement Officer, and shall include evidence of purchase and improvement costs, income earned and lost, depreciation, and costs of relocation. Within ten (10) days after receiving the application,the City Clerk shall schedule a public hearing on the application before the Ozark Planning and Zoning Commission, which public hearing shall be conducted within thirty(30) days after the Code Enforcement Officer's receipt of the application. Notice of the time and place of such public hearing shall be published at least ten(10) days before the hearing in a newspaper of general circulation published within the city of Ozark, Arkansas, and shall contain the particular location for which the hardship extension is requested. The Ozark Planning and Zoning Commission shall issue a written decision within ten(10) days after the public hearing on the application for a hardship extension. The hardship extension shall be granted upon a showing that the non-conforming sexually oriented business is unable to recoup its investments, made prior to the effective date of this ordinance, in its current location unless the hardship extension is granted. F. Exterior portions of sexually oriented businesses. 1. It shall be unlawful for an owner or operator of a sexually oriented business to allow the merchandise or activities of the establishment to be visible from a point outside the establishment 2. It shall be unlawful for the owner or operator of a sexually oriented business to allow the exterior portion of the sexually oriented business to have flashing lights, or any words,lettering,photographs, silhouettes, drawings, or pictorial representations of any manner except to the extent permitted by the provisions of this ordinance. 3. It shall be unlawful for the owner or operator of a sexually oriented business to allow exterior portions of the establishment to be painted any color other than a single achromatic color. This provision shall not apply to a sexually oriented business if the following conditions are met: a. The establishment is a part of a commercial multi-unit center; and b. The exterior portions of each individual unit in the commercial multi-unit center, including the exterior portions of the business, are painted the same color as one another or painted in such a way so as to be a component of the overall architectural style or pattern of the commercial multi-unit center. 4. Nothing in this article shall be construed to require the painting of an otherwise unpainted exterior portion of a sexually oriented business. i 98 E. Signage 1. Notwithstanding any other city ordinance, code, or regulation to the contrary, it shall be unlawful for the operator of any sexually oriented business or any other person to erect, construct, or maintain any sign for the sexually oriented business other than the one (1)primary sign and one (1) secondary sign, as provided herein. 2. Primary signs shall have no more than two (2) display surfaces. Each such display surface shall: a. not contain any flashing lights; b. be a flat plane, rectangular in shape; C. not exceed seventy-five (75) square feet in area; and d. not exceed ten(10) feet in height or ten(10) feet in length. 3. Primary signs shall contain no photographs, silhouettes, drawings or pictorial representations in any manner, and may contain only the name of the enterprise. 4. Each letter forming a word on a primary sign shall be of solid color, and each such letter shall be the same print-type, size and color. The . background behind such lettering on the display surface of a primary sign shall be of a uniform and solid color. 5. Secondary signs shall have only one(1) display surface. Such display surface shall: a. be a flat plane, rectangular in shape; b. not exceed twenty (20) square feet in area; C. not exceed five(5) feet in height and four(4) feet in width; and I be affixed or attached to any wall or door of the enterprise. 6. The provisions of item(A) of subsection(2) and subsection(3) and (4) shall also apply to secondary signs. (Ord.No. 2006-5, Sec. 21.) 99