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HomeMy WebLinkAboutOrdinances - MC-08-951 - 01/21/2008 - REPEAL AND RECODIFY MC CH 30 TO 2.50 ADULT USESOrdinance No. MC- 08-951 An Ordinance providing for updates to Chapter 30 of the City of McHenry Municipal Code. BE IT ORDAINED by the CITY COUNCIL of the CITY OF MCHENRY, McHenry County, Illinois as follows: SECTION 1: That Chapter 30 Adult Uses of the City of McHenry Municipal Code is hereby repealed and replaced with the following: MUNICIPAL CODE CHAPTER 2.50 ADULT USES (MC-01-767; MC-07-947) ARTICLE 1. DEFINITIONS Sec. 2.50-1 Definitions. (MC-07-947) Terms used in this Chapter 2.50, whether capitalized or not, shall have the following meanings: Adult business: Any establishment in which 25% or more of its stock in trade or business activity in a use such as, but not limited to the following: adults -only bookstores, adults -only motion picture theater(s), adult entertainment centers, rap parlors, adults -only nightclubs or adults -only saunas, where explicit sexual conduct is depicted and/or sexual activity is explicitly or implicitly encouraged or tolerated. Adult entertainment business: Synonymous with "adult business" as defined herein. Adult entertainment center: An enclosed building or part of an enclosed building, which contains one or more coin -operated mechanisms which when activated permit a customer to view a live person nude or in such attire, costume or clothing as to expose to view the human male or female genitalia; pubic hair; buttocks; perineum; anal or pubic regions; or, female breast, at or below the areola thereof. In addition, the viewing of a live person, in the above described manner, after paying of any admission or fee for the viewing of same activity. Adults -only: Any items or activities emphasizing, depicting, describing or relating to nudity, explicit sexual conduct (whether auto -erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity. Adults -only bookstore: A bookstore or video store in which 25% or more of its stock in trade, books, magazines, films for sale or viewing on premises by use of motion picture devices or other coin -operated means, and other periodicals which are distinguished or characterized by their principal emphasis on matters depicting, describing or relating to nudity, explicit sexual conduct (whether auto -erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity. Adults -only motion picture theater: An enclosed building used regularly and routinely for presenting adults -only material distinguished or characterized by an emphasis on matter depicting, describing or relating to nudity, explicit sexual conduct (whether auto -erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity, for observation by patron therein. Adults -only nightclub: An establishment or place either occasionally or primarily in the business of featuring topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators or similar entertainers, where explicit sexual conduct is depicted and/or sexual activity is explicitly or implicitly encouraged or tolerated. Adults -only sauna: An establishment or place primarily in the business of providing a steam bath and/or massage services, where explicit sexual conduct is depicted and/or sexual activity is explicitly or implicitly encouraged or tolerated. Booth: Any enclosure that is specifically offered to patrons of an Adult Business for the private viewing of any adults -only item or movie. Said definition does not include enclosures that are used as private offices by any operator, employee or agent for attending to the tasks of their employment and are not offered for use by the public. Breast: A portion of the human female mammary gland (commonly referred to as the female breast) including the nipple and areola (the darker colored area of the breast surrounding the nipple) and an outside area of such gland wherein such outside area is (i) reasonably compact and contiguous to the areola and (ii) contains at least the nipple and the areola and one-fourth of the outside surface area of such gland. Buttocks: The area at the rear of the human body (sometimes referred to as the gluteus maximus) which lies between two imaginary straight lines running parallel to the ground when a Person is standing, the first or top such line being one-half inch below the top of the vertical cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom such line being one- half inch above the lowest point of the curvature of the fleshly protuberance (sometimes referred to as the gluteal fold), and between two imaginary straight lines, one on each side of the body (the "outside lines"), which outside lines are perpendicular to the ground and to the horizontal lines described above and which perpendicular outside lines pass through the outermost point(s) at which each nate meets the outer side of each leg. Notwithstanding the above, buttocks shall not include the leg, the hamstring muscle below the gluteal fold, the tensor fasciae latae muscle or any of the above -described portion of the human body that is between either (i) the left outside perpendicular line and the left outside perpendicular line or (ii) the right inside perpendicular line and the right outside perpendicular line. For the purpose of the previous sentence the left inside perpendicular line shall be an imaginary straight line on the left side of the anus (i) that is perpendicular to the ground and to the horizontal lines described above and (ii) that is one-third of the distance from the anus to the right outside line. (The above description can generally be described as covering one-third of the buttocks centered over the cleavage for the length of the cleavage.) Cubicle: Synonymous with "booth" as defined herein. Door: Full, complete, non -transparent closure device that obscures the view or activity taking place within the enclosure. Entity: For purposes of Article 4 herein, any proprietorship, partnership, corporation, association, business trust, joint venture, joint-stock company or other for profit and/or not for profit organization. Massage therapist: Any person who, for any consideration whatsoever, engages in the practice of therapeutic massage as defined herein, and who provides proof of two of the following: 1. Proof of active membership in a professional massage therapy organization as defined herein. 2. Graduation and completion of a professional entry level massage therapy program consisting of a minimum of 500 hours of in -classroom study and a minimum of 100 hours of clinical experience in a recognized school as defined herein. 3. Passing of the National Certification Examination for Therapeutic Massage and Bodywork (NCETMB) administered by the National Certification Board for Therapeutic Massage and Bodywork, as approved by the National Commission for Certifying Agencies (NCCA), the National Organization for Competency Assurance (NOCA) or any examination exhibiting proficiency in massage therapy/bodywork approved by the State of Illinois or a federal certifying agency. Massage therapy clinic: Any place of business having a source of income or compensation derived from the practice of therapeutic massage as defined herein where a licensed massage therapist administers therapeutic massage or from where a massage therapist is dispatched to administer therapeutic massage as defined herein. A massage therapy clinic may be located within a massage therapist's home, provided it is in compliance with the terms of Article 3 herein and other ordinances of the City. Nightclub: An establishment serving food and/or liquor and providing music and space for dancing by patrons only. A nightclub shall not include an "Adult Business." Nude: Any person insufficiently clothed in any manner so that any of the following body parts are not entirely covered with a fully opaque covering: (1).The male or female genitals, or (2) The male or female pubic area, or (3) The female Breast, or (4) The Buttocks. Attire which is insufficient to comply with this requirement includes, but is not limited to, G-Strings, T-Backs, and thongs. Body paint, body dyes, tattoos, liquid latex whether wet or dried, and similar substances shall not be considered opaque covering. Each female person may determine which one- fourth of her breast surface area (see definition of breast) contiguous to and containing the nipple and the areola is to be covered. Nudity: The display of the human male or female genitalia; pubic hair; buttocks; perineum; anal or pubic regions; female breast, at or below the areola thereof, with no covering or with a less than fully opaque covering; or, male genitalia, in a discernible turgid state, with or without covering. Obscene: Any material or performance is obscene if (1) the average person, applying contemporary adult community standards, would find that, taken as a whole, it appeals to the prurient interest; and (2) the average person, applying contemporary adult community standards, would find that it depicts or describes, in a patently offensive way, ultimate sexual acts or sadomasochistic sexual acts, whether normal or perverted, actual or simulated, or masturbation, excretory functions or lewd exhibition of the genitals; and (3) taken as a whole, it lacks serious literary, artistic, political or scientific value. Operator: For purposes of an Adult Business, as defined herein, any person, (whether said persons be an individual, partner, corporation, joint stock company, fiduciary, officer, director, stockholder, employee, or manager), which conducts, maintains or owns any Adult Business. Patron: For purposes of an Adult Business, as defined herein, any customer, patron or visitor to an Adult Business who is not employed by any operator of said establishment. For purposes of Article 3 herein, A Patron is any person who receives a massage under such circumstances that it is reasonably expected that he or she will pay money or give other consideration therefor. Person: For purposes of Article 4 herein, any live human being aged 10 years of age or older. Places provided or set apart for nudity: Shall mean enclosed single sex public restrooms, enclosed single sex functional shower, locker and/or dressing room facilities, enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations, doctor's offices, portions of hospitals, and similar places in which nudity or exposure is necessarily and customarily expected outside of the home and the sphere of privacy constitutionally protected therein. This term shall not be deemed to include places where a person's conduct of being nude is used for the promotion of business or is otherwise commercially exploited. Professional massage therapy organization: An organization comprised of individuals who have graduated from a recognized school, as defined herein, and which is member owned and operated, i.e., its members elect the Board of Directors. Such organizations include, but are not limited to Rolf, Trager, APTA, BPA, IMF, AOBTA and IMTA. Public place: Any location frequented by the public, or where the public is present or likely to be present, or where a person may reasonably be expected to be observed by members of the public. Public places include, but are not limited to, streets, sidewalks, parks, beaches, business and commercial establishments (whether for profit or not for profit and whether open to the public at large or where entrance is limited by cover charge or membership requirement); bottle clubs; hotels; motels; restaurants; night clubs; country clubs; cabarets; meeting facilities utilized by any religious, social, fraternal or similar organization. A premises, or portion thereof such as a hotel room, used solely as a private residence, whether permanent or temporary in nature, shall not be deemed to be a public place. Rap parlor: An establishment or place primarily in the business of providing non-professional conversation or similar services for adults, where explicit sexual conduct is depicted and/or sexual activity is explicitly or implicitly encouraged or tolerated. Recognized school: A school or educational institution which meets at least one of the following requirements: (1) An approved school operating according to state regulations which has a current State license, approval or accreditation and/or certification and provides an entry level massage training program of a minimum of 500 hours of in -class work completed under the physical supervision of faculty; or (2) A massage school program accredited and/or approved by the Commission on Massage Training/Approval and Accreditation (COMTAA). Schools offering correspondence courses and not requiring actual in -class attendance are not considered recognized schools. Room: Synonymous with "booth" as defined herein. Sadomasochistic activity: Flagellation or torture by or upon a nude person; a person clad in undergarments, a mask or bizarre costume. In addition, the condition of being fettered, bound or otherwise physically restrained with the intent to stimulate or arouse sexually the initiator and/or the recipient. Sell: Includes to solicit or receive an order for, to keep or expose for sale and to keep with intent to sell. Sexual or genital: The term sexual or genital area is defined including the genitals, pubic area, anus, or perineum of any person, or the vulva or breasts of a female. Sexual conduct: Ultimate sex acts (whether auto -erotic, heterosexual, homosexual or otherwise), bestiality or sadomasochistic activity. In addition, physical contact, intended to stimulate or arouse sexually the initiator and/or the recipient, with a person's unclothed genitalia, buttocks, perineum, anal or pubic regions, or female breast. Therapeutic massage: Scientific health care, health maintenance and rehabilitation techniques applied to a client by a trained and professionally licensed massage therapist for the purpose of causing increased circulation throughout the body, ridding the body of waste products and/or toxins, inducing relaxation, easing mental and physical tension, alleviating aches and pains, and the break up of fatty tissues, adhesions, scar tissue and muscle spasm, and releasing the body's endorphins. Such techniques are provided under circumstances where it is reasonably expected that the client, or a third party acting on the client's behalf, will pay money or give other consideration therefore. Therapeutic massage may include but is not limited to joint mobilization techniques, stretches, eflleurage (stroking), petrissage (kneading), tapotement (percussion), compression, vibration, friction, nerve strokes and any reasonable method of pressure on the external soft parts of the body with the hands, elbows or forearms, or with the aid of any mechanical or electrical apparatus or appliances, with or without rubbing alcohol, liniments, antiseptics, oils, power, creams, lotions, ointments or other similar preparations commonly used in this practice. Therapeutic massage does not diagnose or treat classified diseases, practice spinal manipulation or prescribe medicine or drugs. Underage: Any person under 18 years of age, the legally minimum age at which one can purchase or view adults -only items. Wall sign: Any flat sign which is placed against a building or other structure and attached thereto in such manner that only one side is visible. ARTICLE 2. ADULT BUSINESS LICENSE 2.50-2 Adult Business License Required. (A) No business establishment having any portion of its stock in trade or business activity in a use such as but not limited to the following: Adults -only bookstores, Adults -only motion picture theater, Adult entertainment centers, Rap parlors, Adults -only nightclubs or Adults - only saunas, where any sexual conduct is depicted and/or sexual activity is explicitly or implicitly encouraged or tolerated (collectively, "Business Involved in Adult Sales") shall be operated or maintained in the City without first fully completing a form of Statement of Business prepared by the City providing it with enough information to determine whether the proposed establishment constitutes an Adult Business as defined in Sec. 2.50-1, Definitions. Within 14 business days thereafter, the City Administrator shall notify the applicant as to whether the Business Involved in Adult Sales constitutes an Adult Business requiring compliance with the additional Adult Business license regulations of the City or whether additional information is needed to make the required determination. No Business Involved in Adult Sales shall be operated or maintained in the City without first obtaining a license to operate issued by the City. On or before September 1, 2006, all existing Businesses Involved in Adult Sales shall complete the Statement of Business form required herein and file it with the City Administrator. (MC-06-888) (B) A license may be issued only for one adult business located at a fixed and certain place. Any person, partnership or corporation which desires to operate more than one adult business must have a license for each. (C) No license or interest in a license may be transferred to any person, partnership or corporation. (D) All adult businesses existing at the time of the passage of this Chapter must submit an application for a license within 90 days of the passage of this Chapter. If an application is not received within said 90-day period, then such existing adult business shall cease operations. 2.50-3 Application for License. (A) Any person, partnership or corporation desiring to secure a license shall make application to the City Administrator. The application shall be filed in triplicate with and dated by the City Administrator. A copy of the application shall be distributed promptly to the Police Department. (B) The application for a license shall be upon a form provided by the City. An applicant for a license, which shall include all partners or limited partners of a partnership applicant, and all officers or directors of a corporate applicant and all stockholders holding more than five percent of the stock of a corporate applicant or any other person who is interested directly in the ownership or operation of the business, shall furnish the following information under oath: (1) Name and address, including all aliases. (2) Written proof that the individual is at least 18 years of age. (3) All residential addresses of the applicant for the past 10 years. (4) The applicant's height, weight, color of eyes and hair. (5) The business, occupation or employment of the applicant for 10 years immediately preceding the date of application. (6) Whether the applicant previously operated in this or any other county, city or state under an adult business license or similar business license; whether the applicant has ever had such a license revoked or suspended, the reason therefor, and the business entity or trade name under which the applicant operated that was subject to the suspension or revocation. (7) All criminal statutes, whether federal or state, or City ordinance violation convictions, forfeiture of bond and pleadings of nolo contendere on all charges, except minor traffic violations. (8) Fingerprints and two portrait photographs at least two inches by two inches of the applicant. (9) The address of the adult business establishment to be operated by the applicant. (10) If the applicant is a corporation, the application shall specify the name of the corporation, the date and state of incorporation, the name and address of the registered agent. (C) Within 21 days of receiving an application for a license the City Administrator shall notify the applicant whether the application is granted or denied. (D) Whenever an application is denied, the City Administrator shall advise the applicant in writing of the reasons for such action. If the applicant requests a hearing within 10 days of receipt of notification of denial, a public hearing shall be held within 10 days thereafter before the City Council, as hereinafter provided. (E) Failure or refusal of the applicant to give any information relevant to the investigation of the application or his or her refusal or failure to appear at any reasonable time and place for examination under oath regarding said application or his or her refusal to submit to or cooperate with any investigation required by this ordinance, shall constitute an admission by the applicant that he or she is ineligible for such license and shall be grounds for denial thereof by the City Administrator. 2.50-4 Standards for Issuance of License. (A) To receive a license to operate an adult business, an applicant must meet the following standards: (1) If the applicant is an individual: (a) The applicant shall be at least 18 years of age. (b) The applicant shall not have been convicted of, pleaded no contest or stipulated to the facts involving a felony or any crime involving moral turpitude, prostitution, obscenity or other crime of a sexual nature in any jurisdiction within five years immediately preceding the date of the application. (c) The applicant shall not have been found to have previously violated this Article 2 within five years immediately preceding the date of the application. (2) If the applicant is a corporation: (a) All officers, directors and stockholders required to be named under Section 2.50- 3(B)(10) herein shall be at least 18 years of age. (b) No officer, director or stockholder required to be named under Section 30-3(B)(10) herein shall have been convicted of, pleaded no contest or stipulated to the facts involving a felony or any crime involving moral turpitude, prostitution, obscenity or other crime of a sexual nature in any jurisdiction within five years immediately preceding the date of the application. (c) No officer, director or stockholder required to be named under Section 2.50- 3(B)(10) herein shall have been found to have previously violated this Article 2 - within five years immediately preceding the date of the application. (3) If the applicant is a partnership, joint venture or any other type of organization where two or more persons have a financial interest: (a) All persons having a financial interest in the partnership, joint venture or other type of organization shall be at least 18 years of age. (b) No persons having a financial interest in the partnership, joint venture or other type of organization shall have been convicted of, pleaded no contest or stipulated to the facts involving a felony or any crime involving moral turpitude, prostitution, obscenity or other crime of a sexual nature in any jurisdiction within five years immediately preceding the date of the application. (c) No person having a financial interest in the partnership, joint venture or other type of organization shall have been found to have violated any provision of this Article 2 within five years immediately preceding the date of the application. (B) No license shall be issued unless the Police Department has investigated the applicant's qualifications to be licensed. The results of that investigation shall be filed in writing with the City Administrator no later than 14 days after the date of the application. 2.50-5 Fees. A license fee of $250.00 shall be submitted with the application for a license. If the application is denied, one-half of the fee shall be returned. License fees paid less than 12 months prior to renewal shall not be prorated. 2.50-6 Display of License. The license shall be displayed in a conspicuous public place in the adult business such that it may be readily seen by a person entering the premises. 2.50-7 Renewal of License. (A) Every license issued pursuant to this Article 2 will terminate on April 30 of each year unless sooner revoked, and must be renewed before operation is allowed in the following year. Any operator desiring to renew a license shall make application to the City Administrator. The application for renewal must be filed no later than 60 days before the license expires. The application for renewal shall be filed in triplicate with and dated by the City Administrator. A copy of the application for renewal shall be distributed promptly by the City Administrator to the Police Department and to the operator. The application for renewal shall be upon a form provided by the City and shall contain such information and data, given under oath or affirmation, as is required for an application for a new license. (B) A license renewal fee of $250.00 shall be submitted with the application for renewal. In addition to the renewal fee, a late penalty of $100.00 shall be assessed against the applicant who files for a renewal less than 60 days before the license expires. If the application is denied, one-half of the total fees collected shall be returned. (C) If the Police Department is aware of any information bearing on the operator's qualifications, that information shall be filed in writing with the City Administrator. 2.50-8 Revocation of License. (A) The City Council shall revoke a license for any of the following reasons: (1) Discovery that false or misleading information or data was given on any application or material facts were omitted from any application. (2) The operator or any employee of the operator, violates any provision of this Article 2 or any rule or regulation adopted by the City Council pursuant to this Article 2; provided, however, that in the case of a first offense by an operator where the conduct was solely that of an employee, the penalty shall not exceed a suspension of 30 days if the Council shall find that the operator had no actual or constructive knowledge of such violation and could not by the exercise of due diligence have had such actual or constructive knowledge. (3) The operator becomes ineligible to obtain a license. (4) Any cost or fee required to be paid by this Article 2 is not paid. (5) Any alcoholic liquor is served or consumed on the premises of the Adult business. (6) Violation of any City ordinance, code or regulation and failure to pay the required fine or penalty or failure to cure the violations. (7) The transfer of a license or any interest in a license. (B) The City Council, before revoking or suspending any license, shall give the operator at least 10 days' written notice of the charges against him, and the opportunity for a public hearing before the City Council. (C) Any operator whose license is revoked shall not be eligible to receive a license for one year from the date of revocation. No location or premises for which a license has been issued shall be used as an adult business for six months from the date of revocation of the license. 2.50-9 Employees. It shall be unlawful for any adult business licensee or his manager or employee to employ in any capacity within the adult business any person who is not at least 18 years of age. 2.50-10 Physical Layout of Adult business. (A) Any adult business having available for customers, patrons or members, any booth, room or cubicle for the private viewing of any adult entertainment must comply with the following requirements: (1) Access: Each booth, room or cubicle shall be totally accessible to and from aisles and public areas of the adult business, and shall be unobstructed by any door, lock or other control -type devices. (2) Construction: Every booth, room or cubicle shall meet the following construction requirements. (a) Each booth, room or cubicle shall be separated from adjacent booths, rooms and cubicles and any non-public areas by a wall. (b) Have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying same. (c) All walls shall be solid and without any openings, extended from the floor to a height of not less than six feet and be light colored, non -absorbent, smooth textured and easily cleanable. (d) The floor must be light colored, non -absorbent, smooth textured and easily cleanable. (e) The lighting level of each booth, room or cubicle, when not in use shall be a minimum of 10 foot candles at all times, as measured from the floor. (3) Occupants: Only one individual shall occupy a booth, room or cubicle at any time. No occupant of same shall engage in any type of sexual activity, cause any bodily discharge or litter while in the booth. No individual shall damage or deface any portion of the booth. (B) Any adult business as defined herein which features dancers or other entertainers or forms of entertainment, must comply with the following requirements: (1) All dancing or other entertainment shall occur on a platform intended for that purpose which is raised at least two feet from the level of the floor. (2) No dancing or other entertainment shall occur closer than 10 feet to any patron. (3) No dancer or other entertainer shall fondle or caress any patron and no patron shall fondle or caress any dancer or other entertainer. (4) No patron shall directly pay or give any gratuity or tip to any dancer or other entertainer and no dancer or other entertainer shall directly or indirectly solicit any pay or gratuity or tip from any patron. 2.50-11 Responsibilities of the Operator. (A) The operator shall maintain a register of all employees, showing the name and aliases used by the employee, home address, age, birth date, sex, height, weight, color of hair and eyes, phone numbers, Social Security number, date of employment and termination and duties of each employee. The above information on each employee shall be maintained in the register on the premises for a period of three years following termination. (B) The operator shall make the register of employees available immediately for inspection upon demand of a member of the Police Department at all reasonable times. (C) Every act or omission by an employee constituting a violation of the provisions of this Article 2 shall be deemed the act or omission of the operator if such act or omission occurs either with the authorization, knowledge or approval of the operator, or as a result of the operator's negligent failure to supervise the employee's conduct, and the operator shall be punishable for such act or omission in the same manner as if the operator committed the act or caused the omission. (D) Any act or omission of any employee constituting a violation of the provisions of this Article 2 shall be deemed the act or omission of the operator for purposes of determining whether the operator's license shall be revoked, suspended or renewed. (E) No employee of an adult business shall allow any minor to loiter around or to frequent an adult business. (F) The operator shall maintain the premises in a clean and sanitary manner at all times. (G) The operator shall maintain at least 10 foot candles of light in the public portions of the establishment, including aisles, at all times. However, if a lesser level of illumination in the aisles shall be necessary to enable a patron to view the adult entertainment in a booth, room or cubicle adjoining an aisle, a lesser amount of illumination may be maintained in such aisles, provided, however, at no time shall there be less than one foot candle of illumination in said aisles, as measured from the floor. (H) The operator shall insure compliance of the establishment and its patrons with the provisions of this Article 2. 2.50-12 Exclusions. All private schools and public schools, as defined in the Illinois Compiled Statutes, located within the City are exempt from obtaining a license hereunder when instructing pupils in sex education as part of their curriculum. 2.50-13 Penalties and Prosecution. (A) Any person, partnership or corporation who is found to have violated this Article 2 shall be fined not less than $300.00 nor more than $750.00 per offense plus costs of prosecution incurred by the City including reasonable attorney fees and shall result in the revocation of any license. (B) Each violation of this Article 2 shall be considered a separate offense, and any violation continuing more than one day shall be considered a separate offense. 2.50-14 Enforcement. The Police Department shall have the authority to enter any adult business at all reasonable times to inspect the premises and enforce this Article 2. ARTICLE 3. MASSAGE ESTABLISHMENTS AND MASSAGE THERAPISTS (MC-05-870) Sec. 2.50-15 Additional Terms Defined. In addition to the terms defined in Article I of this Chapter 2.50, for purposes of Article 3 herein, the following words or phrases shall have the meanings ascribed to them below, unless otherwise indicated by the context: Massage therapist: Any person who, for any consideration whatsoever, engages in the practice of massage therapy and is licensed by the Illinois Department of Financial and Professional Regulation. Massage therapy license: A valid massage therapy license issued by the Illinois Department of Financial and Professional Regulations. Sec. 2.50-16 License Required. It shall be unlawful for any person, association, firm or corporation to operate a massage therapy clinic in the City without a valid and current license issued by the City pursuant to the terms of this Chapter 2.50. A separate license shall be required for each massage therapy clinic location regardless of whether such multiple clinics are operated by the same person, association, firm or corporation. Sec. 2.50-17 Exemptions. The licensing requirements of this Chapter 2.50 shall not be applicable to: (A) Hospitals, nursing homes and persons holding an unrevoked certificate to practice the healing arts under the laws of the Illinois Department of Professional Regulation, including but not limited to chiropractors, naprapaths, nurses, occupational therapists, physical therapists and physicians. (B) Any barber, cosmetologist or nail technician lawfully carrying on their respective business to the extent authorized under a valid unrevoked license or certificate or registration issued by the State. Provided, this exemption is only intended to permit normal and customary barber, cosmetologist or nail technician services which involve incidental physical contact, such as scalp rubs and facials, which otherwise qualify as massage activities. This exemption is not intended to include, and does not permit, general massage activities as part of any barber, cosmetologist or nail technician business beyond that authorized by the state license or certification. (C) Any state registered athletic trainer who administers such athletic -related massage in the normal course of training duties. (D) A business which employs or includes not more than one massage therapist shall not be required to apply for or obtain a massage therapy clinic license. Such exempt business must be located in a structure which contains no more than one room where massage activities are performed. Except for businesses which operate separate and distinct hours of operation, such exempt businesses must also be the sole massage activity within such structure. Under no circumstances shall more than two exempt businesses be permitted in any structure. Provided further, a massage therapist's license shall be required for the individual massage therapist performing massage activities in such exempted business. (E) Where massage services are actually performed at the patron's premises, including the patron's place of business or residence, a massage therapy clinic license shall not be required for such patron's premises. However, a massage therapist's license shall be required for the massage therapist performing massage activities in such patron's premises. Sec. 2.50-18 Application for Massage Therapy Clinic License. Any person desiring to obtain a license to operate a massage therapy clinic shall make application to the City Administrator. The City Administrator shall have the right to confirm any of the information asked for, or provided in the application, and shall work in conjunction with the Police Department where applicable. Applications shall include the following: (A) The name (including nicknames or aliases) and address, telephone number, social security number and age of the applicant; the registered agent of the applicant if the applicant is a corporation; and the general or managing partners if the applicant is a partnership. (B) The location of the massage therapy clinic. (C) A complete statement of all convictions of the applicant as provided in this Section 2.50-18. If the applicant is a corporation, such statement shall include applicant's officers, and directors thereof, and any stockholder or stockholders owning in the aggregate more than 20 percent of the stock of such corporation. If the applicant is a partnership, such statement shall include all general partners, and any limited partner owning more than 20 percent of the aggregate limited partner interest in such partnership. Such listing shall include the following: (1) Any offense involving sexual misconduct with children or other sex offenses. (2) A felony based upon conduct or involvement in such business or activity or related or similar business or activity, within the past 11 years; or (3) A felony unrelated to conduct or involvement in such business or activity or related to similar business or activity, but which felony involved the use of a deadly weapon, violations of the Cannabis Control Act or the Controlled Substance Act or violence against another person, including rape, within the past five years; or (4) A misdemeanor or licensing ordinance violation, based upon conduct or involvement in such business or activity or related or similar business or activity, within the past two years. (D) A description of the proposed massage therapy clinic, including the number of massage therapists, other activities or business conducted at the same location, and the physical facilities to be used, with a floor layout diagram of same attached thereto. (E) A statement of whether the business will be conducted by a manager. In such case the manager's name, address, telephone number and age shall be provided, along with a statement of any convictions as set forth in this Section 2.50-18. (F) A current certificate of inspection of the premises from the McHenry County Department of Health, if required. (G) The license fee as provided in this Section 2.50-22. (H) Business, occupation or employment of the applicant for three years immediately preceding the date of application. (I) In the event the applicant is made aware that any information or document submitted as part of this application process is inaccurate or incomplete, applicant shall immediately notify the City and provide appropriate corrections. Failure to accurately and completely provide, or as necessary update, required information, may delay the processing of such application or result in its denial. (J) Proof of United States citizenship, permanent resident alien status or a valid work permit, as well as proof of professional liability insurance in an amount of not less than $1,000,000 per each occurrence. Sec 2.50-19 Application Processing. (A) An application shall not be considered proper or filed until all information and material required of the applicant pursuant to this Article 3 has been submitted. (B) Upon receipt of a proper application, the City Administrator, along with the Police Chief or designee, shall investigate the information contained in the application and shall determine compliance with all applicable laws of the City. The nature and scope of the investigation shall be within the discretion of the City Administrator and the Police Department, and shall include, but is not limited to, a criminal history background check and premises inspection. The applicant for a massage therapy clinic license shall allow the Building Code Enforcement Officer to inspect the premises and/or review plans for the facility, to ascertain whether the premises and/or planned changes are in conformance with the City Building Code. In the event plans are submitted prior to construction, a final inspection will be conducted prior to issuance of the license to assure compliance with said Building Code. (C) The investigation, including any required inspections and background checks, shall be completed within 35 business days after receipt of a proper application. Provided, however, the City Administrator may extend this investigation period an additional period, not to exceed an additional 1 I business days, upon a finding that such additional period is needed to properly complete the investigation. Provided, whenever such extension period is invoked, written notice shall be provided to the applicant along with the specific reasons for such extension. (D) If, within 11 business days following completion of the investigation, the City Administrator determines that the applicant and premises are in compliance with the applicable laws of the City and the State, the City Administrator shall issue the license. (E) If, within 1 I business days following completion of the investigation, the City Administrator determines that the premises are not in compliance with the applicable laws of the City and the State, the City Administrator shall notify the applicant in writing that the license has been denied, setting forth the reasons therefore, and advising the applicant of his or her right to appeal pursuant to Section 2.50-29 herein. Unless a timely appeal has been filed as provided in Section 2.50-29 herein, such denials shall be final and effective on the 1 lth day following service of the notice on the applicant. The fee paid by the applicant pursuant to Section 2.50- 22, shall be returned, less $50.00 which will be retained as the processing fee. Sec. 2.50-20 Transfer; Change in Ownership or Management. (A) Any license issued pursuant to this Chapter 2.50 shall be applicable only to the specific applicant and location designated, and may not be sold, transferred or otherwise assigned. Provided, where the licensee remains the same, but a request is made to designate and substitute a different location, the City Administrator may approve such new location upon submission of proof that such location is in compliance with the provisions of this Article 3. A fee of $50.00 shall be required for processing such location change. (B) For purposes of this Chapter 2.50, a transfer of ownership or control of a massage therapy clinic shall mean the sale, lease or sublease of the business, the transfer of securities which constitute a controlling interest in the business whether by sale, exchange or similar means, or the establishment of a trust, gift or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control, or any person not previously listed as an applicant pursuant to this Article 3 acquires an ownership interest in the business of 20 percent or more. (C) A transfer of ownership or control of a massage therapy clinic shall constitute change in the licensee and the existing license shall be deemed surrendered and extinguished. A new application and license shall be filed and processed as provided in this Article 3 prior to such transfer taking effect. Any transfer in the ownership or control of a massage therapy clinic in violation of this Section 2.50-20 shall constitute operation of such business without a license. (D) Notice shall be provided prior to any change of the designated manager conducting business for the massage therapy clinic as provided in this Article 3. The licensee shall, not less than 11 business days before such change is to take effect, give the City Administrator written notice of such change. The notice shall include any information concerning the new manager which is required in Section 2.50-18 herein. Sec. 30-21 Limitation on Issuance and Review of License. No massage therapy clinic license shall be issued or renewed under the following circumstances: (A) To an applicant who has been convicted of the following offenses: (1) Any offense involving sexual misconduct with children or sex offenses; or (2) A felony based upon conduct or involvement in such business or activity or related or similar business or activity, within the past 11 years; or (3) A felony unrelated to conduct or involvement in such business or activity or related to similar business or activity, but which felony involved the use of a deadly weapon, violations of the Cannabis Control Act or the Controlled Substance Act or violence against another person, including rape, within the past five years; or (4) A misdemeanor or licensing ordinance violation, based upon conduct or involvement in such business or activity or related or similar business or activity, within the past two years. (B) To an applicant whose license issued under this Chapter 2.50 has been revoked for cause. (C) To an applicant who at the time of application for renewal of any license issued hereunder would not be eligible for such license upon a first application. (D) To an applicant under the age of 18 years of age. (E) To an applicant where grounds for revocation exist as provided under Section 2.50-28. (F) In addition to the provisions stated hereinabove, no massage therapy clinic license shall be issued or renewed under the following circumstances: (1) To a partnership, if any general partner thereof, or any limited partner owning more than 20 percent of the aggregate limited partner interest in such partnership, would not be eligible to receive a license hereunder. (2) To a corporation, if any officer or director, or any stockholder or stockholders owning in aggregate more than 20 percent of the stock of such corporation, would not be eligible to receive a license hereunder. (3) To a corporation unless it is incorporated in Illinois, or unless it is a foreign corporation which is qualified under the Business Corporation Act of 1983 to transact business in Illinois. (4) To any applicant whose place of business is conducted by a manager unless the manager possesses the same qualifications required by the licensee. (5) To any applicant who is not a beneficial owner of the business to be operated by the licensee. (G) To an applicant who is not a United States citizen or has status as a permanent resident alien or a valid work permit. Sec. 2.50-22 Fees. The fee for a massage therapy clinic license required by this Section 2.50-22 shall be $100.00 and such license shall be valid for three (3) years. Sec. 2.50-23 Expiration of License; Renewal. (A) Each license shall expire on December 31 of the third year and may be renewed only by making application as provided in this Article 3. Provided, in lieu of full submittal, an applicant may, on forms provided by the City, certify that the information previously provided remains true and valid. This renewal application shall be processed as provided in Section 2.50-19. Application for renewal should be made at least 30 days before the expiration date, and when made less than 30 days before the expiration date, the expiration of the license will not be affected. Renewal applications for massage therapy clinic licenses shall be obtained from the City Administrator's office. (B) When the City Administrator denies renewal of a license, the applicant shall not be issued a license for one year from the date of denial. Provided, if subsequent to denial the City Administrator finds that the basis for denial of the renewal license has been corrected or abated, the applicant may be granted a license. Sec. 2.50-24 Massage Therapy Clinic Facilities. No license, or renewal thereof, shall be issued to conduct a massage therapy clinic unless an inspection, conducted by the City Administrator, or his designee, confirms that the clinic complies with the following minimum requirements. Renewal of a license may require reinspections by the City Administrator or his designee. (A) Hot and cold running water shall be provided. (B) Adequate private dressing and toilet facilities shall be provided for patrons. (C) All walls, ceilings, floors, steam rooms and other physical facilities shall be kept in good repair, and maintained in a clean and sanitary condition. (D) Clean and sanitary towels and linens shall be provided for each client receiving massage services. No common use of towels or linens shall be permitted. Sec. 2.50-25 Prohibited Acts and Conditions. (A) No employee or operator shall perform, offer or agree to perform any act which would require the touching of a patron's genital area. (B) The sexual or genital areas of patrons must be covered by non -transparent towels, clothing, cloths or undergarments at all times while in a massage therapy clinic premises, except while said patrons are alone in a washroom, bathroom, shower or clothes -changing area, or except when said patron is receiving lymphatic drainage treatment from a massage therapist having a minimum of 20 hours of training in such treatment. (C) It shall be unlawful for any person, knowingly, in a massage therapy clinic to place his or her hand upon, to touch with any part of his or her body, to fondle in any manner, or to massage, a sexual or genital area of any other person. (D) No person shall administer a therapeutic massage to a patron if the massage therapist has a skin fungus, skin infection, skin inflammation or skin eruption; unless a physician duly licensed by the State of Illinois certifies in writing that such massage therapist may safely administer a massage and prescribing the condition thereof. (E) No employee or operator shall administer a therapeutic massage to a patron exhibiting any skin fungus, skin infection, skin inflammation or skin eruption; unless a physician duly licensed by the State of Illinois certifies in writing that such person may be safely massaged and prescribing the conditions thereof. (F) It shall be unlawful for any person to advertise themselves as a massage therapist without having a valid massage therapist license as defined in this Chapter 2.50. (G) Any license issued under this Chapter 2.50 shall be displayed in a conspicuous location within the customer area of a licensed clinic. Massage therapists shall wear or otherwise display in a conspicuous location within the customer area their State massage therapy license at all times when they are performing, or holding themselves out as available to provide any therapeutic massage. In lieu of this display requirement, when therapeutic massage services are provided at the patron's location, the State massage therapy license shall be presented to the customer before such services commence. (H) At all times during the hours of operation of a massage therapy clinic there shall be present a manager or other employee of the licensee who shall not be less than 18 years of age. (I) No bathroom, bath, shower and/or clothes -changing area may be occupied by more than one person at any time. No massage therapist, massage therapy clinic owners, managers, employees and/or agents may be in any sauna or whirlpool while a patron is in same. (J) No massage therapy clinic licensee shall employ as a massage therapist any person unless said person has a valid State massage therapy license. (K) It shall be unlawful for any person who holds a license to operate a massage therapy clinic within the City to fail to comply with the conditions and regulations set forth in this section or to suffer or permit noncompliance with such conditions and regulations on or within the licensed premises. (L) It shall be unlawful for any person, association, firm or corporation licensed as provided in this Chapter 2.50 to operate under any name or conduct business under any designation not specified in such license. (M) It shall be unlawful for any person, corporation, firm or association licensed under this Chapter 2.50 to provide massage therapy services between the hours of 9:00 p.m. and 7:00 a.m. (N) A licensee shall have the premises supervised at all times when open for business. At least one person who is a State licensed massage therapist shall be on the licensed premises at all times while the establishment is open. The licensee shall personally supervise the business, or shall delegate such supervisory responsibility to a manager whose name is listed on the City license and shall not violate, or permit others to violate, any application provisions of this Chapter 2.50. The violation of any provision of this Chapter 2.50 by any agent or employee of the licensee shall constitute a violation by the licensee. (0) Employee Dress Code: All employees, including massage therapists, shall be clean and wear clean, nontransparent outer garments, covering at least the entire torso and the sexual and genital areas as defined herein. (P) Separate License for Each Premises: Licenses shall apply only to the premises described in the application, and in the license issued thereon, and only one location shall be so described in each license. (Q) Minors Prohibited: No person under the age of 18 shall be permitted to come or remain on the area where the massage activity is taking place on the licensed premises. (R) Alcoholic Beverages Prohibited: No person shall sell, give, dispense, provide, keep or consume, or cause to be sold, given dispensed, provided, kept or consumed, any alcoholic beverage on the licensed premises. Sec. 2.50-26 Premises Restrictions. (A) No massage therapy clinic shall be located on any premises for which a license to sell alcoholic liquor has been issued. (B) The massage therapy clinic premises shall be in compliance with applicable codes and ordinances of the City, including, but not limited to, zoning, building, fire and life safety codes. (C) When any license has been revoked for cause, no license shall be granted to any person for the period of one year thereafter for the conduct of a massage therapy clinic in the premises described in the revoked license. Sec. 2.50-27 Notice of Revocation, Suspension, or Refusal of a License. No license shall be revoked, suspended or refused until the licensee has received due notice. Said notice shall be served upon the licensee by delivering the same personally or by leaving such notice at the place of business or residence of the licensee in the custody of a person 15 years of age or older. In the event the licensee cannot be found, and the service of such notice cannot be otherwise made in the manner herein provided, a copy of such notice shall be sent by certified mail, postage prepaid, addressed to the licensee at the licensee's place of business or residence at least 11 business days prior to the date of such hearing. Sec. 2.50-28 Revocation or Suspension of a License. The license of a massage therapy clinic may be revoked or suspended, in addition to the fines provided for in Section 2.50-30 herein, upon one or more of the following grounds: (A) The licensee has committed an act(s) of fraud or deceit in the application for license, or renewal thereof, submitted to the City Administrator. (B) The licensee is engaged in the practice of massage under a false or assumed name, or is impersonating another massage therapist of a like or different name. (C) The licensee has committed an act of fraudulent, false, misleading or deceptive advertising, or prescribing medicines, drugs or practices any other licensed profession without legal authority therefore. (D) The licensee has committed an act(s) of prostitution, sexual offense or trafficking in controlled substances after the date of issuance of a massage therapy clinic or of a massage therapist license. (E) The licensee is found to be in violation of any section of this Chapter 2.50. (F) The licensee permits acts of prostitution or solicitations for acts of prostitution to be performed within the premises or elsewhere or permits any procedure during the performance of services within or off the premises that are performed for the purpose of sexual arousal or gratification of any patron, or should reasonably be expected to cause such result, or permits the use or trafficking of controlled substances or cannabis on the premises, or the commission of any unlawful act on the premises. (G) The licensee performs an act of prostitution or other lewd conduct within the premises or without the premises or solicits an act of prostitution or other lewd conduct on or off the premises or performs services within or without the premises in such manner for the purpose of sexual arousal or gratification of a patron, or should reasonably be expected to cause such result, or the licensee uses or is trafficking in controlled substances or cannabis. (H) The licensee has violated or is not in compliance with this Article 3 and the license has been suspended within the preceding 24 months. (I) A licensee has knowingly allowed prostitution on the premises. (J) A licensee knowingly conducted massage activities in the City during a period of time when the licensee's license was suspended. (K) Within a 24- month period, a person or persons committed an offense as listed in Section 2.50-21(A), which substantially occurred in or on a licensed premises, and for which a conviction has been obtained, and the person or persons were employees of the licensee at the time the offenses were committed. The fact that a conviction is being appealed shall have no effect on the revocation of the license. Sec. 2.50-29 Appeal. (A) Any applicant or licensee who receives a notice of denial, revocation or suspension may file an appeal with the Mayor as provided herein. Such appeal shall be filed with the Mayor in writing no later than 11 business days following receipt of the notice, and shall include a response to the City Administrator's notice. Such response shall include a brief statement addressing the substantive deficiencies cited in the City Administrator's notice and shall set forth the basis for why the license should not be denied, revoked or suspended. If an appeal is filed of an order of the City Administrator, suspending or revoking a license, such suspension or revocation shall be stayed pending final order of the Mayor as provided in this Section 2.50-29. (B) The Mayor shall schedule an informal public hearing not later than 11 business days following receipt of such appeal. The purpose of the hearing will be to offer the applicant or licensee an opportunity to show cause why the application should not be denied, or why the license should not be suspended or revoked. A record shall be made of the informal public hearing and documents may be submitted and/or testimony given, either in person or through sworn affidavit. This record may be made by electronic recording. The Mayor shall have the power to administer oaths and to continue the hearing from time to time to permit the applicant to provide additional information. The Mayor may designate a hearing officer to schedule, convene and conduct the public hearing. In such case, the hearing officer shall have the same powers as the Mayor to administer oaths and continue the hearing from time to time to permit the applicant to provide additional information. Where such designation has been made, the hearing officer shall submit proposed findings and recommendations to the Mayor within 21 days of the close of the hearing. (C) Within 21 days after the close of the hearing set forth in Section 2.50-29(B) herein, the Mayor shall make written findings of fact and issue an appropriate order. Within five business days a copy of such order shall be served upon the applicant or licensee. If the Mayor determines that the license should be revoked or suspended, the suspension or revocation shall take effect immediately upon receipt unless otherwise specified. (D) The decision of the Mayor provided in Section 2.50-29(C) herein shall be the final administrative action of the City with respect to the license or application, and shall be subject to the immediate appeal by the licensee or applicant to the circuit court. Such appeal to the circuit court shall be filed not later than 35 days following the receipt of the Mayor's findings and order. Failure to file such appeal as provided herein shall render the Mayor's decision final. Sec. 2.50-30 Penalty for Violation. Any person, corporation, firm or partnership found guilty of violating, disobeying, omitting, neglecting or refusing to comply with any of the provisions of this Chapter 2.50 shall be punished by a fine of not less than $200.00 nor more than $1,000.00 for each offense. A separate offense shall be deemed committed on each day during or on which a violation occurs or continues. In addition to any penalty, a licensee violating any provision of this Chapter 2.50 may be subject to having the license revoked, suspended or not renewed. Sec.2.50-31 Reserved ARTICLE 4. PUBLIC NUDITY Sec. 2.50-32 Intent. It is the intent of this Article 4 to protect and preserve the health, safety, welfare and morals of the citizens of the City by prohibiting a person from intentionally or recklessly appearing or being nude, or causing another person to appear to be nude, in a public place and in other places which may reasonably be expected to be observed by the public within the City except as herein provided. Sec. 2.50-33 Legislative Findings. In addition and supplemental to the findings and determinations contained in this Article 4, which are incorporated by reference into this Section 2.50-33, it is hereby found by the City Council, acting in its legislative capacity for the purpose of regulating the conduct of appearing nude in public places that the acts prohibited in this Article 4 encourage or create the potential for criminal activity, that actual and simulated nudity and sexual conduct, begets and has the potential for begetting undesirable and unlawful behavior; that sexual, lewd, lascivious and salacious conduct among patrons and employees within establishments results in violation of law and creates dangers to the health, safety, welfare and morals of the public and those who engage in such conduct. Sec. 2.50-34 Nudity Prohibited in Public Places. It shall be unlawful for any person to knowingly, intentionally or recklessly appear, or cause another person to appear, nude in a public place or in any other place which is readily visible to the public, except as provided in Section 2.50-35 herein. It shall also be unlawful for any person or entity maintaining, owning or operating any public place establishment to encourage, suffer or allow any person to appear nude in such public place, except as provided in Section 2.50-35 herein. Sec. 2.50-35 Exemptions. The prohibitions in Section 2.50-34 herein shall not apply: (A) When a person appears nude in a place provided or set apart for nudity provided such person is: (1) nude for the sole purpose of performing the legal function(s) that is customarily intended to be performed within such place provided or set apart for nudity; and (2) is not nude for the purpose of obtaining money or other financial gain for such person or for another person or entity, or; (B) When the conduct of being nude cannot legally be prohibited by this Article 4 because it constitutes a part of a bona fide live communication, demonstration or performance by a Person wherein such nudity is expressive conduct incidental to and necessary for the conveyance or communication of a genuine message or public expression and is not a mere guise or pretense utilized to exploit the conduct of being nude for profit or commercial gain and as such is protected by the United States or Illinois Constitution or because it is otherwise protected by the United States or Illinois Constitution. (C) A mother breast feeding her baby in any location, public or private, where the mother is otherwise authorized to be, irrespective of whether the nipple of the mother's breast is uncovered during or incidental to the breast feeding. Sec. 2.50-36 Enforcement and Penalties. Any person or entity violating any of the provisions of this Article 4 shall be fined not less than $300.00 nor more than $750.00 per offense plus the cost of prosecution incurred by the City including reasonable attorney fees. Each incident or separate occurrence of an act that violates this Article 4 shall be deemed a separate offense. Continual or repeated violations of this Article 4 shall constitute a public nuisance and the City may initiate proceedings to abate any such nuisance. SECTION 2: If any section, paragraph, subdivision, clause, sentence or provision of this Ordinance shall be adjudged by any Court of competent jurisdiction to be invalid or nullify the remainder thereof, which remainder shall remain and continue in full force and effect. SECTION 3: All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict. SECTION 4: This Ordinance shall be in full force and effect upon its passage, approval and publication in pamphlet form (which publication is hereby authorized) as provided by law. Passed and approved this 2IST day of January, 2008. Voting Aye_ SANTI, GLAB, SCHAEFER, MURGATROND, WIMMER, PETERSON, CONDON Voting Nay: NONE Not Voting: NONE Absent: NONE Abstain: NONE APPROVED: �S Mayor (SEAL) ATTEST: