H-724......................................................by
STATE AFFAIRS
SEXUALLY ORIENTED BUSINESS - Adds to and amends existing law to require
that sexually oriented businesses and their employees
must obtain a license
from the Department of Law Enforcement; to
provide legislative intent and
findings; to provide application to existing businesses; to provide
contents of license applications and license fees; to provide for issuance
and expiration of licenses; to prohibit certain
acts and to provide for
suspension and revocation of licenses;
to provide for hearings and appeals;
to provide for hours of operation and inspections
of businesses; to allow
for local regulation; and to provide that certain
records are confidential.
03/08 House intro - 1st rdg - to printing
03/09 Rpt prt - to Bus
STATEMENT OF PURPOSE
The purpose of this bill is
to regulate sexually oriented businesses commonly
known as cabarets and
adult theaters so as to prevent the negative secondary
effects that are associated with such establishments.
These include, but are not
limited to, prostitution,
paid sexual contact, the spread of diseases that can occur
from such acts, narcotics
violations, increased noise, traffic, and litter, and blight
that occurs through
a depression of property values in the vicinity of the
establishment.
To meet constitutional requirements, the bill allows erotic
performances to continue;
however, illegal and harmful conduct ancillary to those
performances is regulated.
Business Committee
Banking/insurance issues
Odd days, afternoons, Room 408
332-1139
William "Bill" Taylor, Chair
Jeff Alltus,
Vice Chair
W.O. "Bill"
Deal
Fred Tilman
Hilde Kellogg
Max Black
Wayne Meyer
David Callister
Lee Gagner
Kent Kunz
Steve Smylie
Bill Text
H-724
||||
LEGISLATURE OF THE STATE OF IDAHO
||||
Fifty-fifth Legislature
Second Regular Session - 2000
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 724
BY STATE AFFAIRS COMMITTEE
1
AN ACT
2 RELATING TO SEXUALLY ORIENTED BUSINESSES;
AMENDING TITLE 18, IDAHO CODE, BY
3 THE ADDITION OF
A NEW CHAPTER 85, TITLE 18, IDAHO CODE, TO REQUIRE LICENS-
4 ING OF SEXUALLY
ORIENTED BUSINESSES AND EMPLOYEES, TO PROVIDE LEGISLATIVE
5 INTENT AND FINDINGS,
TO PROVIDE DEFINITIONS, TO REQUIRE THAT SEXUALLY ORI-
6 ENTED BUSINESSES
AND THEIR EMPLOYEES MUST OBTAIN A LICENSE
FROM THE
7 DEPARTMENT
OF LAW ENFORCEMENT, TO REQUIRE A LICENSE AND TO PROVIDE APPLI-
8 CATION TO EXISTING
BUSINESSES, TO PROVIDE CONTENTS OF LICENSE APPLICA-
9 TIONS, TO
PROVIDE LICENSE FEES, TO PROVIDE FOR ISSUANCE OF LICENSES, TO
10 PROVIDE FOR EXPIRATION
OF LICENSES, TO PROHIBIT CERTAIN ACTS AND PROVIDE
11 FOR MISDEMEANORS,
TO PROHIBIT TRANSFER OF LICENSES, TO PROVIDE FOR SUSPEN-
12 SION AND
REVOCATION OF LICENSES, TO PROVIDE A RIGHT AND PROCEDURES FOR
13 PROMPT JUDICIAL
REVIEW OF DENIAL, SUSPENSION OR REVOCATION OF A LICENSE,
14 TO PROVIDE
FOR ISSUANCE OF TEMPORARY LICENSES PENDING RESOLUTION OF AN
15 APPEAL, TO PROVIDE
HOURS OF OPERATION, TO PROVIDE FOR INSPECTIONS OF BUSI-
16 NESSES, TO PROVIDE
SEVERABILITY, TO PROVIDE FOR CONFLICTS AND TO ALLOW
17 LOCAL REGULATION;
AND AMENDING SECTION 9-340B, IDAHO CODE, TO PROVIDE THAT
18 CERTAIN RECORDS
ARE CONFIDENTIAL.
19 Be It Enacted by the Legislature of the
State of Idaho:
20 SECTION 1.
That Title 18, Idaho Code, be, and the same is hereby amended
21 by the addition thereto of a NEW CHAPTER,
to be known and designated as Chap-
22 ter 85, Title 18, Idaho Code, and to read
as follows:
23
CHAPTER 85
24
LICENSING OF SEXUALLY ORIENTED BUSINESSES AND EMPLOYEES
25 18-8501. LEGISLATIVE
INTENT AND FINDINGS. (1) This chapter promotes
the
26 health, safety and
welfare of the citizens of Idaho by requiring licensing of
27 sexually oriented
businesses and employees of those businesses. This chapter
28 is not intended to
restrict the content of communicative materials, including
29 sexually oriented
materials or to restrict access by adults to sexually ori-
30 ented materials protected
by the first amendment to the United States consti-
31 tution, or to
deny access by the distributors and exhibitors of sexually ori-
32 ented entertainment
to their intended market. However, this chapter does
not
33 condone or make legitimate the distribution
of obscene material.
34 (2) The legislature
finds that:
35 (a)
Sexually oriented businesses lend themselves to ancillary
unlawful
36
and unhealthy activities that are presently uncontrolled by the operators
37
of the establishments. Further, there is presently
no mechanism to make
38 the owners of these
establishments responsible for the activities that
39 occur on their premises;
40 (b) Certain
employees of adult theaters and adult cabarets engage in a
41
higher incidence of certain types of illegal sexual behavior than
employ-
42
ees of other establishments;
2
1 (c) Persons
sometimes visit adult theaters and adult cabarets for
the
2 purpose of engaging
in sex on the premises of the theaters and cabarets;
3 (d) At
least fifty (50) communicable diseases may be spread by activities
4
occurring in sexually oriented businesses, including syphilis, gonorrhea,
5
human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepati-
6
tis B, Non A, Non B amebiasis, salmonella infections and shigella
infec-
7
tions;
8 (e) Since
1981, there has been an increasing
cumulative number of
9 reported cases of
AIDS caused by the human immunodeficiency virus (HIV) in
10 the United States
and in Idaho;
11 (f) Scientific
evidence indicates that HIV and AIDS infection, as well as
12 syphilis and gonorrhea,
are principally transmitted by sexual acts; and
13 (g)
Sanitary conditions in some sexually oriented
businesses are
14
unhealthy, in part, because the activities conducted there are unhealthy,
15
and, in part, because of the unregulated nature of the activities and
the
16
failure of the owners and the operators of the facilities to properly reg-
17
ulate those activities and maintain those facilities.
18 (3)
These findings raise substantial governmental
concerns which are
19 properly addressed
by regulating sexually oriented businesses by requiring
20 licensing of
those businesses and employees of those businesses. Licensing
21 will require sexually oriented businesses
to be operated in a manner consis-
22 tent with the law and the health, safety
and welfare of its employees, patrons
23 and the citizens of the state.
24 18-8502.
DEFINITIONS. As used in this chapter:
25 (1) "Adult
cabaret" means a nightclub, bar, restaurant or similar commer-
26 cial establishment which regularly features:
27 (a) Persons
who appear nude or seminude; or
28 (b) Live
performances which are characterized by the
exposure of
29 "specified
anatomical areas" or by "specified sexual
activities"; or
30 (c) Films,
motion pictures, video cassettes, slides or other photographic
31 reproductions which
are characterized by an emphasis on the exhibition or
32 description
of "specified sexual activities" or "specified
anatomical
33 areas."
34 (2)
"Adult theater" means a theater, concert hall, auditorium or
similar
35 commercial establishment which
regularly features persons who appear nude or
36 seminude, or live performances which are
characterized by the exposure of
37 "specified anatomical areas" or by "specified
sexual activities."
38 (3) "Department"
means the Idaho department of law enforcement.
39 (4) "Employee"
means a person who performs seminude on the premises of a
40 sexually oriented business on
a full-time, part-time or contract basis,
41 whether or not the person is denominated
an employee, independent contractor,
42 agent or otherwise, and whether or not the
person is paid a salary, wage or
43 other compensation by
the operator of the business. "Employee" does not
44 include a person exclusively on the premises
for repair or maintenance of the
45 premises or equipment
on the premises, or for the delivery of goods to the
46 premises.
47 (5) "Establishment"
means:
48 (a) The opening
or commencement of a sexually oriented business as a new
49 business;
50 (b) The
conversion of an existing business, whether or not a
sexually
51 oriented business,
to any sexually oriented business;
52 (c) The additions
of any sexually oriented business to any other existing
53 sexually oriented
business; or
54 (d) The relocation
of any sexually oriented business.
3
1 (6) "Licensee"
means a person in whose name a license to operate a sexu-
2 ally oriented business
is issued, as well as the individual(s) listed as an
3 applicant on the application for a license;
and in the case of an employee, a
4 person in whose name
a license has been issued authorizing employment in a
5 sexually oriented business.
6 (7) "Nude"
means the showing of the human male or female genitals, pubic
7 area, vulva, anus, anal cleft or cleavage
with less than a fully opaque cover-
8 ing, the showing of the female
breast with less than a fully opaque covering
9 of any part of the nipple, or the showing
of the covered male genitals in a
10 discernibly turgid state.
11 (8) "Person"
means an individual, proprietorship, partnership, corpora-
12 tion, association or any other legal entity.
13 (9) "Regularly
features" means, with respect to an adult theater or adult
14 cabaret, a continuing and substantial course
of conduct, such that films or
15 exhibitions shown constitute a substantial
portion of the films or exhibitions
16 offered as part of the regular business
of the adult theater or adult cabaret.
17 (10) "Seminude"
means the showing of the female breast below a horizontal
18 line across the top of the areola at its
highest point or the showing of the
19 male or female buttocks. This
definition shall include the entire lower por-
20 tion of the human female breast, but shall
not include any portion of the
21 cleavage of the human
female breast, exhibited by a dress, blouse, skirt,
22 leotard, bathing suit or other wearing apparel
provided the areola is not
23 exposed in whole or in part.
24 (11) "Sexually
oriented business" means an adult cabaret or adult theater.
25 (12) "Specified
anatomical areas" means:
26 (a) The
human male genitals in a discernibly turgid state, even if com-
27 pletely and opaquely
covered; or
28 (b) Less than
completely and opaquely covered human genitals,
pubic
29 region, buttocks
or a female breast below a point immediately above the
30 top of the areola.
31 (13) "Specified
criminal activity" means:
32 (a) Any of
the offenses listed in section 18-8304(1)(a), Idaho Code, or
33 any crime,
attempt, solicitation or conspiracy to commit
a crime in
34 another state, territory,
commonwealth or jurisdiction of the United
35 States, that is
substantially equivalent to the offenses listed in section
36 18-8304(1)(a), Idaho
Code;
37 (b) Any
violation of chapter 56, title 18, Idaho Code (prostitution and
38 related crimes);
and
39 (c) Any violation
of chapter 41, title 18, Idaho Code (indecency
and
40 obscenity).
41 (d) For which:
42
(i) Less than two (2) years have elapsed since the date
of convic-
43
tion or the date of release from confinement imposed for the convic-
44
tion, whichever is the later date, if the conviction is of
a misde-
45
meanor offense;
46
(ii) Less than five (5) years have elapsed since the date of convic-
47
tion or the date of release from confinement for
the conviction,
48
whichever is the later date, if the
conviction is of a felony
49
offense; or
50
(iii) Less than five (5) years have elapsed since the date
of the
51
last conviction or the date of release from confinement for the last
52
conviction, whichever is the later date, if the convictions
are of
53
two (2) or more misdemeanor offenses or combination of
misdemeanor
54
offenses occurring within any twenty-four (24) month period.
55 (e) The fact
that a conviction is being appealed shall have no effect on
4
1 the disqualification
of the applicant or a person residing with the appli-
2 cant.
3 (14) "Specified
sexual activities" means any of the following:
4 (a) The
fondling or other erotic touching of
human genitals, pubic
5 region, buttocks,
anus or female breasts;
6 (b) Sex
acts, actual or simulated, including
intercourse, oral
7 copulation, masturbation
or sodomy; or
8 (c) Excretory
functions as part of or in connection with
any of the
9 activities set forth
in paragraphs (a) and (b) of this subsection.
10 (15) "Substantial
enlargement of a sexually oriented business" means the
11 increase in floor areas occupied by the
business by more than twenty-five per-
12 cent (25%), as the
floor areas exist on the initial effective date of this
13 chapter.
14 (16) "Transfer
of ownership or control of a sexually oriented business"
15 means:
16 (a) The sale,
lease, or sublease of the business;
17 (b) The
transfer of securities which constitutes a controlling interest
18 in the business,
whether by sale, exchange or similar means; or
19 (c) The establishment
of a trust, gift or other similar legal device
20 which transfers
the ownership or control of the business, except
for
21 transfer by bequest
or other operation of law upon the death of the person
22 possessing the ownership
or control.
23 18-8503. LICENSES
REQUIRED -- APPLICATION -- EXISTING BUSINESSES.
(1)
24 Sexually oriented businesses and employees
of sexually oriented businesses, as
25 both are defined in this
chapter, must obtain a license from the department
26 pursuant to this chapter.
27 (2) This
chapter applies to all sexually oriented businesses and employ-
28 ees of sexually
oriented businesses described in this chapter. Sexually ori-
29 ented businesses established on or before
the initial effective date of this
30 chapter and employees of sexually oriented
businesses so employed on or before
31 the initial effective
date of this chapter must comply with this chapter
32 within ninety (90) days of the initial effective
date of this chapter.
33 18-8504. APPLICATIONS
FOR LICENSES -- CONTENTS. (1) An application for a
34 license must be made on a form provided
by the department.
35 (2) All
applicants must be qualified under this chapter. The department
36 may request and the
applicant must provide information,
including
37 fingerprints, to enable
the department to determine whether the applicant
38 meets the requirements of this chapter.
39 (3) If a person
who wants to operate a sexually oriented business is an
40 individual, the individual must sign the
license application as applicant. If
41 a person who wants to
operate a sexually oriented business is other than an
42 individual, each individual who has a twenty
percent (20%) or greater interest
43 in the business must sign the license application
as applicant. Each appli-
44 cant must be qualified
under this chapter. Each applicant is considered a
45 licensee if a license is granted.
46 (4) A person
applying for a license to operate a sexually oriented busi-
47 ness must submit the following information
with its license application:
48 (a) If
the applicant is an individual, the individual must state his/her
49 legal name and any
aliases and submit proof that he/she is eighteen (18)
50 years of age;
51 (b) If
the applicant is a partnership, the partnership must
state its
52 complete name, whether
the partnership is general or limited, a copy of
53 the partnership
agreement, if any, and the names of all partners;
5
1 (c) If
the applicant is a corporation, the corporation must
state its
2 complete name, the
date of its incorporation, evidence that the corpora-
3 tion is in good
standing under the laws of its state of incorporation, the
4 names and
capacity of all officers, directors and principal stockholders,
5 those who own a
twenty percent (20%) interest or greater, and the name of
6 the registered
corporate agent and the address of the registered office
7 for service of process;
8 (d) A full
disclosure of whether the applicant has been convicted of
a
9 specified
criminal activity as defined in this chapter and, if
so, the
10 specified criminal
activity involved, and the date, place and jurisdiction
11 of each;
12 (e) A full
disclosure of whether the applicant has had a license
under
13 this chapter or
other similar law regulating sexually oriented business in
14 another city,
county, state or country denied, suspended or revoked,
15 including the name
and location of the sexually oriented business
for
16 which the license
was denied, suspended or revoked, as well as the date of
17 the denial, suspension
or revocation, and whether the applicant has been a
18 partner in
a partnership or an officer, director or principal stockholder
19 of a corporation
that is licensed under this chapter whose license
has
20 previously been
denied, suspended or revoked, including the name and loca-
21 tion of
the sexually oriented business for which the license was denied,
22 suspended or revoked
as well as the date of denial, suspension or revoca-
23 tion;
24 (f) A
full disclosure of whether the applicant holds any other licenses
25 under this chapter
or other similar sexually oriented business law from
26 another city, county,
state or country and, if so, the names and locations
27 of the other licensed
businesses;
28 (g) Whether
the license sought under this chapter is for an adult theater
29 or adult cabaret;
30 (h) The
location of the proposed sexually oriented business, including a
31 legal description
of the property, street address and telephone number(s),
32 if any;
33 (i) The applicant's
mailing address and residential address;
34 (j) A recent
photograph of the applicant(s);
35 (k) The applicant's
driver's license number, social security number, and
36 state or federally
issued tax identification number, if applicable;
37 (l) A
sketch or diagram showing the configuration
of the premises,
38 including a statement
of total floor space occupied by the business. The
39 sketch or
diagram need not be professionally prepared, but it must
be
40 drawn to a designated
scale or drawn with marked dimensions of the inte-
41 rior of the premises
to an accuracy of plus or minus six (6) inches;
42 (m) If
the applicant intends to operate the sexually oriented business
43 under a name other
than that of the applicant, the applicant must provide
44 the sexually oriented
business's fictitious name.
45 (5) An individual
applying for a license to work as an employee of a sex-
46 ually oriented business must submit
the following information with the appli-
47 cation:
48 (a) All names,
including aliases and "stage" names, ever used
by the
49 individual;
50 (b) Age, date
and place of birth;
51 (c) Height,
weight, hair and eye color;
52 (d) Present
home and business address and telephone number;
53 (e) Date,
issuing state and number of driver's license or other identifi-
54 cation card information;
55 (f) Social
security number;
6
1 (g) Proof
that the individual is at least eighteen (18) years of age;
2 (h) A
color photograph of the applicant clearly showing the applicant's
3 face, and the applicant's
fingerprints on a form provided by
a law
4 enforcement agency.
Any fees for the photographs and fingerprints shall be
5 paid by the applicant;
6 (i) A
statement detailing the license history of the applicant for
the
7 five (5) years immediately
preceding the date of the filing of the appli-
8 cation, including
whether the applicant has ever, in conjunction with a
9 sexually oriented
business operated in this or any other city, county,
10 state or
country, had a license, permit or authorization to do business
11 denied, revoked
or suspended, or had any professional
or vocational
12 license or
permit denied, revoked or suspended. If there
was such a
13 denial, revocation
or suspension, the applicant must state the name of the
14 business, the name
of the issuing or denying jurisdiction, and describe in
15 full the reason
for the denial, revocation or suspension. A copy of any
16 order of denial,
revocation or suspension must be attached to the applica-
17 tion;
18 (j) A
full disclosure of whether the applicant has been convicted
of a
19 specified criminal
activity as defined in this chapter and if so,
the
20 specified
criminal activity involved, the date, place and jurisdiction of
21 each offense.
22 (6) Information
obtained by or disclosed to the department in connection
23 with an application for
a license or license renewal under this chapter is
24 confidential and exempt from public disclosure
pursuant to section 9-340B(5),
25 Idaho Code; provided, that the department
may disclose such information to law
26 enforcement officials pursuant to
a lawful investigation and to other persons
27 in connection with an action brought pursuant
to this chapter, or upon order
28 of a court.
29 18-8505. LICENSE
FEES. (1) Every application for a sexually oriented
30 business license, whether for a new license
or for renewal of an existing
31 license, shall be accompanied
by a two hundred dollar ($200) nonrefundable
32 application and investigation fee.
33 (2) In addition
to the application and investigation fee, every sexually
34 oriented business that is granted a license,
whether new or renewal, shall pay
35 to the department an annual
nonrefundable license fee of one hundred dollars
36 ($100) within thirty (30) days of license
issuance or renewal.
37 (3) Every
application for a license to work as an employee of a sexually
38 oriented business, whether
for a new license or for renewal of an existing
39 license, shall be accompanied by an annual
one hundred dollar ($100) nonre-
40 fundable application, investigation and
license fee.
41 (4) All
license applications and fees shall be submitted to the depart-
42 ment.
43 18-8506. ISSUANCE
OF LICENSES. (1) Upon the filing of a license applica-
44 tion and license application
fees pursuant to this chapter, the department
45 shall investigate the information contained
in the application. All department
46 action required to process the application
shall be completed within thirty
47 (30) days from the date the
completed application is filed with the depart-
48 ment. The term "filed" means the date
a complete application is postmarked if
49 mailed, or the date a complete application
is received by the department if
50 the application is hand delivered. The department
shall issue a license within
51 thirty (30) days of the filing of the complete
application, unless the depart-
52 ment determines by a preponderance of the
evidence that:
53 (a) The
applicant has failed to provide information required
in this
7
1 chapter or has falsely
answered a question or request for information on
2 the application
form;
3 (b) The applicant
is under eighteen (18) years of age;
4 (c) The
applicant has been convicted of a "specified criminal activity"
5 as defined in this
chapter;
6 (d) The license
to work as an employee of a sexually oriented business is
7 to be used for employment
in a business prohibited by any law, rule or
8 regulation; or
9 (e) The
applicant has had a sexually oriented business employee license
10 revoked, for a reason
other than delinquency in payment of fees or taxes,
11 by the department
within two (2) years of the date of the current applica-
12 tion. If
the sexually oriented business employee license is denied, any
13 temporary license
previously issued is immediately deemed null and void.
14 (2) A license
granted pursuant to this section is subject
to annual
15 renewal upon the written
application of the applicant and a finding by the
16 state that the applicant has not been
convicted of any specified criminal
17 activity as defined in this chapter
or committed any act during the existence
18 of the previous license, which would be
grounds to deny the initial license
19 application. Such a finding by the
state must be made within thirty (30) days
20 from the date that the written
application for license renewal was submitted
21 or by the date of annual renewal, whichever
is later. The renewal of the
22 license is subject to the payment of the
license fee required in this chapter.
23 (3) Within
thirty (30) days after receipt of a completed sexually ori-
24 ented business application, the department
shall approve or deny the issuance
25 of a license to an applicant.
The department shall approve the issuance of a
26 license to an applicant unless it is determined
by a preponderance of the evi-
27 dence that:
28 (a) An applicant
is under eighteen (18) years of age;
29 (b) An applicant
is overdue in payment to the state of taxes, fees, fines
30 or penalties assessed
against or imposed upon him/her in relation to any
31 business;
32 (c) An
applicant has failed to provide information reasonably necessary
33 for issuance of
the license or has falsely answered a question or request
34 for information
on the application form;
35 (d) An
applicant has been denied a license by the department to operate
36 a sexually oriented
business within the preceding twelve (12) months or
37 whose license
to operate a sexually oriented business has been revoked
38 within the preceding
twelve (12) months;
39 (e) An applicant
has been convicted of a specified criminal activity as
40 defined in this
chapter;
41 (f) The
premises to be used for the sexually oriented business has
not
42 been approved by
the appropriate state and local agencies and officials as
43 complying with applicable
state and local law;
44 (g) The license
fee required by this chapter has not been paid;
45 (h) An applicant
of the proposed establishment is not in compliance with
46 this chapter.
47 (4) The license,
if granted, shall state on its face the name of the per-
48 son or persons to whom it is granted,
the expiration date, the address of the
49 sexually oriented business or address of
the employee of the sexually oriented
50 business, and whether the license
applies to an adult theater or adult caba-
51 ret. Licenses to operate sexually oriented
businesses must be posted in a con-
52 spicuous place at or near the entrance to
the sexually oriented business so
53 that they may be easily read at any time.
Licenses to work as an employee of a
54 sexually oriented business shall be kept
on or near the individual employee in
55 whose name the license is issued when
the employee is working at the sexually
8
1 oriented business.
2 (5) The appropriate
state and local agencies and officials shall complete
3 their certification that the premises
complies with applicable law within
4 thirty (30) days of receipt of the application
by the department.
5 18-8507. EXPIRATION
OF LICENSES. (1) Licenses issued under this chapter
6 expire one (1) year from the date they were
issued. Licenses may be renewed
7 only by applying as provided in this
chapter. Application for renewal must be
8 made at least thirty (30) days before the
expiration date. If application for
9 renewal is made less
than thirty (30) days before the expiration date, the
10 expiration date of the license shall not
be affected, and the department shall
11 renew the license or deny the license renewal
within thirty (30) days of the
12 date that the application for renewal was
submitted.
13 (2) Unless
a temporary license is issued pursuant to section 18-8512,
14 Idaho Code, if the department denies renewal
of a license the applicant shall
15 not be issued a license
for one (1) year from the date of denial; provided,
16 that if the application for renewal was
denied solely because the applicant
17 has not paid fees or taxes, the department
shall grant a license within thirty
18 (30) days of the date that the applicant
pays the fees or taxes. If, after the
19 denial of an application for renewal,
the department finds that the basis for
20 denial, other than for not paying fees or
taxes, of the renewal license has
21 been corrected or abated, the
applicant may be granted a license if at least
22 ninety (90) days have elapsed since the
date the denial became final.
23 18-8508. PROHIBITED
ACTS -- MISDEMEANORS -- LICENSES NOT TRANSFERABLE.
24 (1) A person who operates or
causes to be operated a sexually oriented busi-
25 ness without a valid license or in violation
of this chapter may be enjoined
26 and/or prosecuted for criminal violations.
Each day a sexually oriented busi-
27 ness operates in violation of this chapter
is a separate offense or violation.
28 (2) It is
a misdemeanor for a person:
29 (a) Who operates
a sexually oriented business to take into service
an
30 employee as
defined in this chapter to work for the sexually oriented
31 business, if the
person taken into service is not licensed as a sexually
32 oriented business
employee pursuant to this chapter;
33 (b) To knowingly
or intentionally appear nude or exhibit specified sexual
34 activities in a
sexually oriented business;
35 (c) To
knowingly or intentionally appear seminude in a sexually oriented
36 business unless
the person is a licensed employee who is at least six (6)
37 feet from any patron
or customer and on a stage at least two (2) feet from
38 the floor;
39 (d) Who
is a licensed employee who is seminude in a sexually
oriented
40 business to solicit
pay or gratuities from patrons or customers;
41 (e) Who is
a customer or patron to pay or give a gratuity to the person
42 of a
licensed employee who is seminude in a sexually oriented business.
43 Customers or patrons
shall contribute pay or gratuities to a licensed
44 employee of
a sexually oriented business only by deposit of the pay or
45 gratuity in a receptacle
kept at least six (6) feet away from the licensed
46 employee;
47 (f) Who is
a licensed employee to knowingly touch a customer
or the
48 customer's
clothing while the employee is seminude in a sexually oriented
49 business;
50 (g) To knowingly
allow a person under eighteen (18) years of age on the
51 premises of a sexually
oriented business;
52 (h) Who operates
a sexually oriented business or his agent or employee to
53 refuse to
permit lawful inspection of the premises at any time the prem-
9
1 ises are open for
business.
2 18-8509. LICENSES
NOT TRANSFERABLE. Licenses issued under this chapter
3 may not be transferred.
4 18-8510. LICENSE
SUSPENSION AND REVOCATION. (1) The department shall sus-
5 pend a license issued
under this chapter for a period not to exceed thirty
6 (30) days if it determines that the sexually
oriented business or employee to
7 whom the license was issued has not
complied with any provision of this chap-
8 ter.
9 (2) The department
must revoke a license issued under this chapter if,
10 within twelve (12) months of the suspension
of such a license, another offense
11 occurs which would by itself cause a suspension
of the license.
12 (3) The department
must revoke the license of the offending sexually ori-
13 ented business or employee if it determines
that the licensee:
14 (a) Gave false
or misleading information in the license application or in
15 materials
submitted in the application process, if the licensee knew
or
16 should have known
that the information was false or misleading;
17 (b) Knowingly
allowed or participated in the possession, use or sale of
18 controlled substances
on the premises;
19 (c) Knowingly
allowed, or participated in, prostitution on the premises;
20 (d) Knowingly
operated the sexually oriented business during a period of
21 time when the licensee's
license was suspended;
22 (e) Knowingly
allowed, or participated in, any act of sexual intercourse,
23 sodomy, oral copulation,
masturbation or other sex act to occur in or on
24 the licensed premises.
25 (4) Licenses
must be revoked for a period of ninety (90) days to one (1)
26 year. If, after revocation, the department
finds that the basis for the revo-
27 cation has been corrected or abated, the
applicant may be granted a license if
28 at least ninety (90)
days have passed since the date the revocation became
29 effective.
30 18-8511. RIGHT
TO PROMPT JUDICIAL REVIEW OF DENIAL, SUSPENSION OR REVOCA-
31 TION OF A LICENSE. (1) An applicant or license
holder aggrieved by an action
32 of the department which
results in denial, suspension or revocation of a
33 license issued under this chapter has the
right to prompt judicial review and
34 decision according to this section.
35 (2) Notwithstanding
any state statute, administrative rule or court rule
36 to the contrary, an action or proceeding
to review the issuance, revocation,
37 suspension, or denial of a license or other
entitlement for expressive conduct
38 protected by the First
Amendment to the United States Constitution shall be
39 conducted in accordance with this section.
40 (3) For purposes
of this section, the following definitions shall apply:
41 (a) The terms
"license" and "entitlement" are used interchangeably.
42 (b) The term
"license applicant" means both an applicant for a license
43 and a holder of
a license.
44 (c) The
term "public agency" means a city, county, city and county,
a
45 joint powers authority
or similar public entity formed pursuant to law, or
46 any other public
entity authorized by law to issue licenses for expressive
47 conduct protected
by the First Amendment to the United States Constitu-
48 tion.
49 (4) A
public agency may, if it so chooses, designate
the licenses or
50 entitlements to which this section applies
by adopting an ordinance or resolu-
51 tion which contains a specific listing or
other description of the licenses or
52 entitlements issued by the public agency
which are eligible for expedited
10
1 judicial review pursuant to this section
because the licenses regulate expres-
2 sive conduct protected by the First
Amendment to the United States Constitu-
3 tion.
4 (5) The procedure
set forth in this subsection, when applicable, shall
5 supersede anything to the contrary
as set forth in state statute, administra-
6 tive rules, and court rules regulating civil
procedure.
7 (a) Within
five (5) court days after receipt of written notification from
8 a license applicant
that the applicant will seek judicial review of a pub-
9 lic agency's action
on the license, the public agency shall prepare, cer-
10 tify, and
make available the administrative record to the license appli-
11 cant.
12 (b) Either
the public agency or the license applicant may bring an action
13 in accordance with
the procedure set forth in this section.
If the
14 license applicant
brings the action, the action shall be in the form of a
15 petition for writ
of mandate pursuant to the Idaho rules of civil proce-
16 dure.
17 (c) The party
bringing the action pursuant to this section shall file and
18 serve the
petition on the respondent no later than twenty-one (21) calen-
19 dar days following
the public agency's final decision on the license. The
20 title page of the
petition shall contain the following language in eigh-
21 teen (18) point
type:
22
"ATTENTION: THIS MATTER IS ENTITLED TO PRIORITY AND SUBJECT
TO
23
THE EXPEDITED HEARING AND REVIEW PROCEDURES CONTAINED IN SECTION
24
18-8511, IDAHO CODE."
25 (d) The clerk
of the court shall set a hearing for review of the petition
26 no later than twenty-five
(25) calendar days from the date the petition is
27 filed. Moving,
opposition, and reply papers shall be filed as provided in
28 the Idaho rules
of civil procedure. The petitioner shall lodge the admin-
29 istrative record
with the court no later than ten (10) calendar days in
30 advance of the hearing
date.
31 (e) Following
the conclusion of the hearing, the court shall render its
32 decision in an expeditious
manner consistent with constitutional require-
33 ments in
view of the particular facts and circumstances.
In no event
34 shall the decision
be rendered later than twenty (20) calendar days after
35 the matter
is submitted or fifty (50) calendar days after the date the
36 petition is filed
pursuant to subsection (4) of this section, whichever is
37 earlier.
38 (6) If the
presiding judge of the court in which the action
is filed
39 determines that, as a
result of either the press of other court business or
40 other factors, the court will be unable
to meet any one (1) or more of the
41 deadlines provided within this section,
the presiding judge shall request the
42 temporary assignment of a judicial officer
to hear the petition and render a
43 decision within the time
limits contained in this section. Given the short
44 time period involved, the request shall
be entitled to priority.
45 (7) In any
action challenging the issuance, revocation, suspension,
or
46 denial of a license or entitlement, the
parties to the action shall be permit-
47 ted to jointly waive the time limits provided
for in this section.
48 18-8512. ISSUANCE
OF TEMPORARY LICENSES PENDING APPEAL. A sexually ori-
49 ented business or an employee of a sexually
oriented business that is denied
50 issuance of a license
under this chapter, or that has a license suspended,
51 revoked or has been denied renewal, shall
be issued a temporary license if the
52 business or employee perfects an appeal
of the denial, suspension, revocation
53 or denial of renewal. The temporary
license shall be effective until resolu-
54 tion of the appeal.
11
1 18-8513. HOURS
OF OPERATION. Sexually oriented businesses
shall not
2 remain open between the
hours of two o'clock (2:00 a.m.) and eight o'clock
3 (8:00 a.m.) on weekdays and Saturdays, and
two o'clock (2:00 a.m.) and noon
4 (12:00 p.m.) on Sundays. These restrictions
do not apply to adult motels.
5 18-8514. INSPECTION
OF SEXUALLY ORIENTED BUSINESSES. An applicant or
6 licensee shall permit representatives of
applicable state and local agencies
7 to perform lawful inspections of the
premises of a sexually oriented business
8 for the purpose of ensuring compliance with
the law, at any time the business
9 is occupied or open for business.
10 18-8515. SEVERABILITY.
If any provision of this chapter or its applica-
11 tion to any person or circumstance is held
invalid, the invalidity does not
12 affect other provisions
or applications of this chapter which can be given
13 effect without the invalid provision or
application, and to this end the pro-
14 visions of this chapter are severable.
15 18-8516. CONFLICTING
STATUTES REPEALED -- LOCAL REGULATION PERMITTED. In
16 case of conflict between any provision of
this chapter and other statutes or
17 parts of statutes, the
provision of this chapter in question shall prevail.
18 The enactment of this chapter does not abrogate
the authority of local govern-
19 mental authorities to enact local zoning
or licensing regulations, so long as
20 the licensing requirements are not less
restrictive than those imposed in this
21 chapter.
22 SECTION 2.
That Section 9-340B, Idaho Code, be, and the same is hereby
23 amended to read as follows:
24 9-340B. RECORDS
EXEMPT FROM DISCLOSURE -- LAW ENFORCEMENT RECORDS, INVES-
25 TIGATORY RECORDS OF AGENCIES, WORKER'S COMPENSATION.
The following records are
26 exempt from disclosure:
27 (1) Investigatory
records of a law enforcement agency, as defined in sec-
28 tion 9-337(5), Idaho Code, under the conditions
set forth in section 9-335,
29 Idaho Code.
30 (2) Juvenile
records of a person maintained pursuant to chapter 5, title
31 20, Idaho Code, except that facts contained
in such records shall be furnished
32 upon request in a manner determined by the
court to persons and governmental
33 and private agencies and institutions conducting
pertinent research studies or
34 having a legitimate interest
in the protection, welfare and treatment of the
35 juvenile who is thirteen (13) years of age
or younger. If the juvenile is
36 petitioned or charged
with an offense which would be a criminal offense if
37 committed by an adult, the name, offense
of which the juvenile was petitioned
38 or charged and disposition of the court
shall be subject to disclosure as pro-
39 vided in section 20-525,
Idaho Code. Additionally, facts contained in any
40 records of a juvenile maintained under chapter
5, title 20, Idaho Code, shall
41 be furnished upon request
to any school district where the juvenile is
42 enrolled or is seeking enrollment.
43 (3) (a) Records
of the department of correction or the commission of par-
44 dons and parole
to the extent that disclosure thereof would interfere with
45 the secure and orderly
conduct of their operations, or the rehabilitation
46 of any person in
the custody of the department of correction or on parole,
47 or would substantially
prejudice or prevent the carrying out of the func-
48 tions of the department
of correction or the commission of pardons and
49 parole if
the public interest in confidentiality clearly outweighs the
50 public interest
in disclosure. Records exempt from disclosure
shall
12
1 include, but
not be limited to, those containing the names and addresses
2 of witnesses or
victims or those containing information identifying vic-
3 tims or witnesses.
4 (b) Operation
manuals of county jails. "Operation manuals" are
those
5 internal documents
of any county jail that define the procedures utilized
6 to maintain security
within the jail.
7 (4) Voting
records of the sexual offender classification board. In accor-
8 dance with section 18-8315,
Idaho Code, the written record of the vote to
9 classify an offender as a violent sexual
predator by each board member in each
10 case reviewed by that board member shall
be exempt from disclosure to the pub-
11 lic and shall be made available upon request
only to the governor, the chair-
12 man of the senate judiciary and rules committee,
and the chairman of the house
13 of representatives judiciary, rules and
administration committee, for all law-
14 ful purposes.
15 (5) Records
of the sheriff or department of law enforcement received or
16 maintained pursuant to section 18-3302,
Idaho Code, and chapter 85, title 18,
17 Idaho Code, relating to an applicant or
licensee.
18 (6) Records
of investigations prepared by the department of health and
19 welfare pursuant to its statutory responsibilities
dealing with the protection
20 of children, the rehabilitation of youth,
adoptions and the commitment of men-
21 tally ill persons.
22 (7) Records
including, but not limited to, investigative reports, result-
23 ing from investigations conducted into complaints
of discrimination made to
24 the Idaho human rights
commission unless the public interest in allowing
25 inspection and copying of such records outweighs
the legitimate public or pri-
26 vate interest in maintaining confidentiality
of such records. A person may
27 inspect and copy documents from an
investigative file to which he or she is a
28 named party if such documents are not otherwise
prohibited from disclosure by
29 federal law or regulation or state law.
The confidentiality of this subsection
30 will no longer apply to any record
used in any judicial proceeding brought by
31 a named party to the complaint or investigation,
or by the Idaho human rights
32 commission, relating to the complaint of
discrimination.
33 (8) Records
containing information obtained by the manager of the Idaho
34 state insurance fund pursuant to chapter
9, title 72, Idaho Code, from or on
35 behalf of employers or employees contained
in underwriting and claims for ben-
36 efits files.
37 (9) The
worker's compensation records of the Idaho industrial commission
38 provided that the industrial commission
shall make such records available:
39 (a) To the
parties in any worker's compensation claim and to the indus-
40 trial special indemnity
fund of the state of Idaho; or
41 (b) To
employers and prospective employers subject to the provisions of
42 the Americans with
disabilities act, 42 U.S.C. 12112, or other statutory
43 limitations,
who certify that the information is being requested
with
44 respect to a worker
to whom the employer has extended an offer of employ-
45 ment and will be
used in accordance with the provisions of the Americans
46 with disabilities
act, 42 U.S.C. 12112, or other statutory limitations; or
47 (c) To
employers and prospective employers not subject to the provisions
48 of the Americans
with disabilities act, 42 U.S.C. 12112, or other statu-
49 tory limitations,
provided the employer presents a written authorization
50 from the person
to whom the records pertain; or
51 (d) To others
who demonstrate that the public interest
in allowing
52 inspection
and copying of such records outweighs the public or private
53 interest in maintaining
the confidentiality of such records, as determined
54 by a civil court
of competent jurisdiction.
55 (10) Records of
investigations compiled by the commission on aging involv-
13
1 ing vulnerable adults, as defined in section
18-1505, Idaho Code, alleged to
2 be abused, neglected or exploited.
3 (11) Criminal
history records and fingerprints, as defined by
section
4 67-3001, Idaho Code, and compiled by the
department of law enforcement. Such
5 records shall be released only in
accordance with chapter 30, title 67, Idaho
6 Code.
Statement of Purpose / Fiscal Impact
FISCAL NOTE
None.
CONTACT: Rep. Jeff Alltus (208) 332-1000
Vince Hughes (208) 773-8022