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H0724......................................................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
H0724
|||| 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
RS10204C2
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.
FISCAL NOTE
None.
CONTACT: Rep. Jeff Alltus (208) 332-1000
Vince Hughes (208) 773-8022
STATEMENT OF PURPOSE/ FISCAL NOTE H 724