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Sec. 24-231.  Legislative findings and determinations.
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The Town Council hereby finds and determines as follows:

(1) That IC 36-1-3 et seq. authorizes the Town, as a municipality, to adopt ordinances for the purpose of protecting the health, safety and welfare of its residents and to preserve the peace, order and safety of the community;

(2) That sexually orientated businesses located and operating within the corporate boundaries of the Town require unique and special supervision by local public health and safety agencies in order to protect and preserve the health, safety and welfare of the patrons of said sexually oriented businesses, as well as the citizens of the Town;

(3) That legal precedent established by the United States Supreme Court in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986) and City of Erie v. Pap's A.M. bda "Kandyland", 529 U.S. 277, 279 (2000), provides that local legislative bodies may rely on findings and studies from other municipalities when enacting an Ordinance regulating sexually oriented businesses;

(4) That the Town Council has reviewed evidence regarding the adverse secondary effects of sexually oriented businesses, and has reviewed findings and studies from other communities regarding this subject including, but not limited to, Tucson, Arizona (1990), Garden Grove, California (1991), Los Angeles, California (1977), Whittier, California (1978), Indianapolis, Indiana (1984), Times Square, New York (1994), Oklahoma City, Oklahoma (1986), Oklahoma City, Oklahoma II (1992), Austin, Texas (1986), Dallas, Texas (1997), Newport News, Virginia (1996), and Seattle, Washington (1989);

(5) That the Town Council has determined, after reviewing studies and findings from other communities, the testimony of local residents, organizations and business people, and reports and information presented by the Town administrative staff, that there is substantial and convincing evidence that sexually oriented businesses, because of their very nature, have a deleterious effect on existing businesses in their vicinity, the surrounding residential areas and the public at large, causing, among other adverse secondary effects, increased crime and urban blight, diminished property values and the spread of sexually transmitted diseases; and

(6) That the Town Council has considered and reviewed the decisions of the United States Supreme Court, and other courts, regarding local regulation of sexually oriented businesses including, but not limited to, Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) reh. denied 429 U.S. 873 (1976); Renton v. Playtime Theatres, 475 U.S. 41 (1986) reh. denied 475 U.S. 1132 (1986); FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of National City v. Wiener, 3 Cal. 4th 832 (1992); Topanga Press, Inc., v. City of Los Angeles, 989 F.2d 1524 (1993); City of Erie v. Pap's A.M. tbda "Kandyland", 529 U.S. 277 (2000); and City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004);

(7) That the Town Council after its review, has determined that location restrictions alone do not adequately protect the health, safety and general welfare of the residents of the Town and, thus, believes that certain regulatory requirements concerning ownership and operation of sexually oriented businesses in the Town is in the best interests of the public;

(8) That the Town has further determined that restrictions for sexually oriented businesses, such as those restrictions placed on the sale and consumption of alcohol and outside advertising, will further prevent adverse secondary effects of sexually oriented businesses from affecting the health, safety and general welfare and well-being of the residents of the Town; and

(9) That the Town does not intend by passage of this chapter, to suppress any speech or expression activities protected by the First Amendment of the United States Constitution or Article 1, § 9 of the Indiana State Constitution, but to enact a content-neutral Ordinance that addresses and regulates the adverse secondary effects of sexually oriented businesses;

(10) That the Town Council does not intend to condone or legitimize the distribution of obscene material, and hereby recognizes that applicable state law prohibits the distribution of obscene material and also encourages appropriate law enforcement officials to prosecute any such illegal activities in the Town;

(11) That the Town Council hereby finds that the live entertainment presented by some sexually oriented business establishments involves a considerable amount of bodily contact between patrons and performers, including physical contact while giving and receiving gratuities, and hugging, kissing, and sexual fondling of performers and patrons. Many sexually oriented businesses offer "sofa/couch" or "straddle" dancing. In these "dances," the performers sometimes do such things as sit in the patron's lap, place their breasts against the patron's face, gyrate in such a manner as to simulate sexual intercourse while maintaining physical contact, allow patrons to suckle their breasts, breathe heavily into a patron's groin area, and bite and gnaw at, as well as fondle, the genitals of patrons. Performers, both during the semi-private dances and on a stage, have pulled patrons' faces into their vaginal areas, or performed a "whipped cream" dance wherein patrons were allowed to spoon feed themselves with whipped cream that had been spread on the breasts and vaginal and anal areas of the performers. In other instances, male patrons have placed a peeled banana between their legs while female performers have eaten the banana. Some of this conduct would violate the State Penal Code and Town Code, which prohibit, among other things, the public fondling of genitals (IC 35-45-4-1 et seq., as amended from time to time). Although no actual sexual intercourse may be involved, contact titillation provided in exchange for a gratuity constitutes prostitution, which is in violation of IC 35-45-4-2, as amended from time to time;

(12) That the Town Council is aware and has been informed that a number of courts have upheld restrictions on the amount of physical distance between performers and patrons, prohibitions against physical contact between performers and patrons, and direct payment and receipt of gratuities by performers from patrons at sexually oriented business establishments that provide live entertainment, including, but not limited to, the following: BSA, Inc. v. King County, 804 F.2d 1104, 1110-11 (9th Cir. 1986) (six (6) feet); Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1061-1062 (9th Cir. 1986) (ten (10) feet); Zanganeh v. Hymes, 844 F. Supp. 1087, 1091 (D.Md. 1994) (six (6) feet); T-Marc, Inc. v. Pinellas County, 804 F. Supp. 1500, 1506 (M.D.Fla. 1992) (three (3) feet); DLS, Inc., v. City of Chattanooga, 894 F. Supp. 1140, (E.D. Tenn. 1995) (six (6) feet and prohibiting direct payment and receipt of gratuities); Parker v. Whitfield County, 463 S.E.2d 116, 117 (Ga. 1995) (prohibiting tipping and contact between dancers and patrons); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253-55 (5th Cir. 1995) (aff'd prohibition on touching or any contact between dancers and patrons); and Threesome Entertainment, et al. v. Jack Strittmather, et al., 4 F. Supp. 710 (N.D. Ohio 1998) (six (6) feet);

(13) That the Town Council has been advised that preventing prostitution and the spread of sexually transmitted diseases are clearly within the scope of its police powers and that legislative authority for this proposition exists in the case cited as Southeastern Promotions, Inc. v. Conrad, 341 F. Supp. 465, 477 (E.D. Tenn. 1972) rev'd on other grounds, 420 U.S. 546 (1975), among others;

(14) That the Town Council agrees and concurs that prohibiting physical contact between performers and patrons at sexually oriented business establishments, prohibiting performers from soliciting payment of gratuities from patrons, and prohibiting the direct payment of gratuities to performers by patrons are a reasonable and effective means of addressing its legitimate governmental interests; further, it is not the intent of the Town to place any impermissible burden on any constitutionally protected mode of speech, expression or conduct by the enactment or enforcement of such regulations; and

(15) That the Town Council, having reviewed all matters regarding the regulation of sexually oriented businesses, now concurs that the adoption of an ordinance regulating such businesses is advisable, necessary and in the best interests of the residents of the Town.