06-022-O                                                          REPLACEMENT


ORDINANCE NO. __________


AN ORDINANCE REGULATING ADULT ENTERTAINMENT ESTABLISHMENTS; AMENDING CHAPTER 5, ARTICLE IV, OF THE DULUTH CITY CODE, 1959, AS AMENDED.

BY COUNCILOR STEWART:

The city of Duluth does ordain:

     Section 1. That Section 5-17 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Article IV. Adult Bookstores; Adult Entertainment Establishments.

Sec. 5-17. Definitions.

     For the purpose of this Article, the following words and phrases shall have the meaning respectively ascribed to them by this Section:

     (a)  Adult bookstore. As used in this Article, means a retail establishment which is in the business of selling books, pamphlets, magazines or other pictorial or printed material and which:

           (1)  Advertises or holds out in any manner that the printed or pictorial matter sold therein is for adults only or is distinguished or characterized by a principal emphasis on nudity, sado- masochistic abuse, sexual conduct, or sexual excitement; and/or

           (2)  Has 40 percent or more of its gross sales in books, pamphlets, magazines or other pictorial or printed material which are distinguished or characterized by a principal emphasis on nudity, sado-masochistic abuse, sexual conduct, or sexual excitement; and/or

           (3)  Has 30 percent or more of books, pamphlets, magazines or other pictorial or printed material displayed for sale on the premises distinguished or characterized by a principal emphasis on nudity, sado-masochistic abuse, sexual conduct or sexual excitement;

     (b)  Adult entertainment establishment has the meaning set out in M.S.A. Section 617.242, or its successor, which currently reads as follows: A business


that is open only to adults and that presents live performances that are distinguished or characterized by an emphasis on the depiction of sexual conduct or sexually-oriented entertainment.

     (b c)Nudity. The showing of the post-pubertal human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of a post-pubertal female breast with less than a fully opaque covering of any portion thereof below the top of the nipple or the depiction of covered male genitals in a discernibly turgid state;

     (c d)Sado-masochistic abuse. Scenes involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, torture, fettering, binding or other physical restraint of any such persons;

     (d e)Sexual conduct. Acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed genitals, pubic area, buttocks or, if such a person be a female, her breast, and the meaning set out in M.S.A. Section 617.241, or its successor;

     (e f)Sexual excitement. The condition of the human male or female genitals or the breasts of the female when in a state of sexual stimulation or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity;

     (f g)Residential zone. Any zone provided in Chapter 50 of the Duluth City Code, 1959, as amended, that is designated R-1-a, R-1-b, R-1-c, R-2, R-3, R-4 or S;

     (g h)Public skywalk. Any place within the city public skywalk system. For the purpose of this Article, the city council shall, by resolution, designate those areas which constitute the public skywalk system;

     (h i)Pedestrian plaza. A man-made structure upon which have been placed amenities such as walking surfaces, plantings, street furniture or other similar improvements which is substantially open to the elements and held open to the general public.

     Section 2. That Section 5-18 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-18. Statement of purpose and policy.

     The city council of the city of Duluth hereby finds that the operation of adult bookstores or adult entertainment establishments in or near churches, schools, parks, residential zones and public skywalks tends to have a deleterious effect upon such churches, schools, parks, residential zones and skywalks because of objectionable characteristics and secondary effects that are inherent in the operation of adult bookstores and adult entertainment establishments. The city council of the city of Duluth further finds that adult bookstores and adult entertainment establishments which are in operation in or near churches, schools, parks, residential zones and public skywalks are contrary to the public interest, are harmful to public morals and safety, and constitute a nuisance. The city council of the city of Duluth further finds that it is necessary to license adult bookstores and to regulate the location of adult bookstores and adult entertainment establishments with respect to their respective distances from churches, schools, parks, residential areas and public skywalks, consistent with existing property rights and First Amendment rights of all the citizenry of the city of Duluth. It is the council’s intent, as authorized by M.S.A. Section 617.242, subd. 7, that the provision of this Article, or its successor, prevail over the contrary provisions of M.S.A. Section 617.242, or its successor.

     Section 3. That Section 5-19 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-19. License required - Hours of Operation.

     No person shall own or operate an adult bookstore within the city without first having obtained a license to do so. No person shall operate an adult entertainment establishment in any area where it is prohibited by Section 5-21, or its successor. An adult entertainment establishment may operate only during the hours that an on sale licensed premises may operate as set out in Section 8-19, or its successor, and state statute.

     Section 4. That Section 5-21 of the Duluth City Code, 1959, as amended, be amended to read as follows:

Sec. 5-21. Licenses not to be issued in certain places.

     No license for the ownership or operation of an adult book store shall be issued and operation of any adult entertainment establishment shall not be allowed within the following areas:

     (a)  Within 600 feet of a church, school, public park or building in which programmed, scheduled or supervised educational activity, recreational activity, religious training, behavioral guidance/correction activity or personal guidance counseling is regularly provided to children 12 years of age or younger;

     (b)  Within 600 feet of a residential zone;

     (c)  In an area that is within or fronts on public skywalk;

     (d)  Within 400 feet of a pedestrian plaza.

     For purposes of this Section, distance shall be measured from the center of the closest doorway giving ingress or egress to the adult book store along a straight line to the closest boundary of the property upon which is located the thing to which the measurement is made.

     The restrictions of (b) thru (d), above, and M.S.A. Section 617.242, or its successor, shall not apply to a location where an adult entertainment establishment that operated in a premises duly licensed for on sale intoxicating liquor sales had, on May 26, 2006, been in continuous operation at the same location for a period of at least one year, and was legally operating at that time at that location.

     Section 5. That this ordinance shall take effect 30 days after its passage and publication.


STATEMENT OF PURPOSE:  This ordinance applies to adult entertainment establishments the same location standards as adult bookstores and the same hours of operation as bars.


This change allows any adult entertainment business location that had been operating in a bar for at least a year on January 1, 2006 to continue operation at that location. It is based on the premise that negative secondary effects experienced by the city up until that time were minimal.