(a) Permit required.
(1) No person shall conduct, maintain, operate, or cause to be conducted, maintained, or operated, any sexually oriented business within the corporate limits of the Town without first being licensed under this article.
(2) The Town department of planning and zoning, or its designee, is responsible for granting, denying, revoking, renewing, suspending, and canceling sexually oriented business permits for proposed or existing sexually oriented businesses. The Town department of planning and zoning, or its designee, is also responsible for ascertaining whether a proposed sexually oriented business for which a permit is being requested complies with all applicable zoning laws and regulations now in effect or as amended or enacted subsequent to the effective date of the ordinance from which this chapter derives in the Town and the Town's comprehensive plan.
(3) The Town Code Enforcement officer shall be responsible for inspecting a proposed, permitted or non-permitted sexually oriented business in order to ascertain whether it is in compliance with applicable statutes and ordinances.
(4) An application for a permit must be made on a form provided by the Town department of planning and zoning. Any person desiring to operate a sexually oriented business shall file with the Town an original and two (2) copies of a sworn permit application.
(5) The completed application shall contain the following information, including the following documents:
a. In the event that an applicant is:
1. An individual, the individual shall state his/her legal name, and all aliases, and shall submit satisfactory proof that he/she is at least eighteen (18) years of age;
2. A partnership, the partnership shall state its complete name, and the names of all partners, whether the partnership is general or limited, and a copy of the partnership agreement, if any;
3. A corporation or limited liability company, such entity shall state its complete name, the date of its incorporation or organization, evidence that the entity is in good standing under the laws of the State of Indiana, the names and capacity of all officers, directors, principal stockholders and/or members, and the name and address of the individual registered as agent for service of process.
b. In the event that an applicant intends to operate the sexually oriented business under a name other than that of the applicant, he/she must:
1. Include the sexually oriented business's name in the application; and
2. Submit the certificate of existence issued by the Indiana Secretary of State.
c. Whether the applicant or any other individual listed in the application holds any other permits and/or licenses under this article or other similar sexually oriented business ordinance from another city, town, county, or state and, if so, the names and locations of such other permitted businesses.
d. The single classification of permit for which the applicant is filing.
e. The location of the proposed sexually oriented business, including a legal description of the property, common street address, and telephone number(s), if any.
f. The applicant's business mailing address.
g. A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches.
h. A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a state registered land surveyor depicting the property lines and the structures containing any established existing uses regulated by this article within one thousand (1,000) feet of the property to be certified, the property lines of any established religious institution/synagogue, school, or public park or recreation area within one thousand (1,000) feet of the property to be certified and the property lines of any residentially zoned area or residential property within one thousand (1,000) feet of the property to be certified. For purposes of this section, a use shall be considered existing or established if it is in existence at the time an application is submitted.
i. In the event that a person who wishes to operate a sexually oriented business is an individual, he/she must sign the application for a permit as applicant. If a person wishes to operate a sexually oriented business collectively with a group of individuals, each individual who has a ten (10) percent or greater interest in the business must sign the application for a permit as applicant. If a corporation or limited liability company is listed as owner of a sexually oriented business or as the entity that intends to operate such a business, each individual having a ten (10) percent or greater interest in the entity must sign the application for a permit as applicant.
j. In the event that a person wishes to operate a sexually oriented business which shall exhibit films, video cassettes or other video reproductions on the premises which depict specified sexual activities or specified anatomical areas, then said person shall comply with the application requirements stated at section 10-121.14.
(6) Applicants for a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event that said information changes in any way from what is stated on the application. The failure to comply with said continuing duty within thirty (30) days from the date of such change shall be a valid and lawful basis for suspension of a permit.
(7) In the event that the Town department of planning and zoning, or its designee, determines or learns at any time that the applicant has improperly completed the application for a proposed sexually oriented business, it shall promptly notify the applicant of such fact and allow the applicant ten (10) days within which to properly complete the application. The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.
(8) An applicant must be qualified according to the provisions of this article, and the premises must be inspected and found to be in compliance with all applicable health, fire and building codes and laws, and any other applicable federal or state laws.
(9) An applicant shall be required to pay a nonrefundable application fee of two hundred fifty dollars ($250.00) at the time of the filing of an application under this section of this article, as amended from time to time.
(10) Prior to obtaining any permit or license to operate any sexually oriented business and as part of any application for a permit under this section, an applicant shall obtain from the Town department of planning and zoning, or its designee, a certification that the proposed location of such business complies with this zoning chapter.
(11) The fact that a person possesses other types of state or town permits and/or licenses shall not exempt him/her from the requirement of obtaining a sexually oriented business permit under this section of this article.
(12) By applying for a permit under this article, an applicant shall be deemed to have consented to the provisions of this article and to the exercise by the Town department of planning and zoning, or its designee, and all other town agencies charged with enforcing the laws, ordinances and codes applicable in the Town, of their respective responsibilities under this article.
(13) An applicant shall be required to provide the Town with the names of any and all employees who are required to be licensed herein. This obligation shall be a continuing obligation of an applicant even after a permit is granted or renewed.
(b) Investigation and application.
(1) Upon receipt of an application properly filed with the Town, and upon payment of the nonrefundable application fee, the Town's zoning administrator shall immediately stamp the application as received and shall immediately thereafter transmit photocopies of the application to all town agencies responsible for enforcement of health, fire and building codes and state and federal laws. Each department or agency shall promptly conduct an investigation of the applicant, application and the proposed sexually oriented business in accordance with its responsibilities under applicable law and as set forth in this chapter. Said investigation shall be completed within twenty (20) days of receipt of the application by the Town's zoning administrator. At the conclusion of its investigation, each department or agency shall indicate on the photocopy of the application its approval or disapproval of the application, date it, sign it and, in the event the department or agency recommends disapproval of the application, the reasons therefore.
(2) A department or agency shall recommend disapproval of an application if it finds that the proposed sexually oriented business will be in violation of any provision of any applicable statute, code, ordinance, regulation or other law in effect in the Town. After indicating its recommendation of approval or disapproval of an application, each department or agency shall immediately return the photocopy of the application to the Town's zoning administrator, who shall forward the application and any accompanying materials to the Town department of planning and zoning for consideration.
(c) Issuance of permit.
(1) The Town department of planning and zoning, or its designee, shall grant or deny an application for a permit within thirty (30) days from the date of its proper filing. Upon the expiration of said thirty (30) days, and unless an applicant requests and is granted a reasonable extension of time, an applicant shall be permitted to begin operating the business for which the permit is sought, unless and until the Town department of planning and zoning, or its designee, notifies the applicant of the denial of the application and states the reasons(s) for that denial.
(2) Grant of application for permit.
a. The Town department of planning and zoning, or its designee, shall grant the application unless one or more of the criteria set forth in subsection (3) below is present.
b. The permit, if granted, shall state on its face the name of the person, or persons, to whom the permit is granted, the permit's expiration date and the address of the sexually oriented business. The permit shall also indicate that the sexually oriented business shall be subject to prohibitions against public nudity and indecency pursuant to IC 35-45-4-1, as amended from time to time. The permit shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it can be read easily at any time.
(3) Denial of application for permit.
a. The Town department of planning and zoning, or its designee, shall deny the application for any of the following reasons:
1. An applicant is under eighteen (18) years of age.
2. An applicant has failed to provide all of the information required by this section or the permit application itself for the issuance of the permit, or has falsely answered a question or request for information on the application form.
3. The premises to be used for the sexually oriented business have been inspected by the appropriate and responsible town departments and/or agencies and have been found to be in violation of applicable town and/or state health, fire and building codes.
4. The application or permit fees required by this article have not been paid.
5. An applicant of the proposed sexually oriented business is in violation of, or is not in compliance with, any of the provisions of this article or the Town zoning chapter.
6. The granting of the application would violate a federal or state law, statute, ordinance, or court order.
7. An applicant knowingly has in his/her employ, an employee who does not have a valid license as required herein.
b. In the event that the Town department of planning and zoning, or its designee, denies the application, it shall notify an applicant of the denial and state the reason(s) therefor.
c. In the event that a person applies for a permit for a particular location within a period of twelve (12) months from the date of denial of a previous application for a permit at that location, and there has not been an intervening change in the circumstances which could reasonably be expected to lead to a different decision regarding the former reason(s) for denial, the application shall be denied.
(d) Annual permit fee. The annual fee for a sexually oriented business permit shall be two hundred dollars ($200.00).
(1) An applicant or permittee shall permit duly designated representatives of the Town and the county to enter and inspect the premises of a sexually oriented business for the purpose of insuring compliance with any and all applicable laws, statutes, codes, ordinances, and the like, at any time it is occupied or open for business.
(2) A person who refuses to permit such inspection of the premises at any time that it is occupied or open for business, as described in subsection (1) above, shall be in violation of this article.
(f) Expiration of permit.
(1) Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided herein and for applications for permit renewals, filing of the original survey shall be sufficient. An application for renewal shall be made at least thirty (30) days before the permit expiration date and, when made less than thirty (30) days before the permit expiration date, the expiration of the permit will not be affected.
(2) When the Town department of planning and zoning, or its designee, denies renewal of a permit, the applicant shall not be issued a permit under this chapter for a period of one year from the date of denial. If, subsequent to denial, the Town department of planning and zoning, or its designee, determines that the basis for denial of the renewal of the permit has been corrected, the applicant shall be granted a permit if at least ninety (90) days have elapsed since the date denial became final.
(g) Suspension of permit.
(1) The Town department of planning and zoning, or its designee, shall suspend a permit for a period not to exceed thirty (30) days if it determines that a permittee, or an employee of a permittee, has:
a. Violated or is not in compliance with any section of this article;
b. Been under the influence of alcoholic beverages or any controlled substances while working in or on the premises of the sexually oriented business;
c. Refused to allow an inspection of the premises of the sexually oriented business as authorized by this article;
d. Knowingly permitted gambling by any person on the premises of the sexually oriented business;
e. Operated the sexually oriented business in violation of a building, fire, health, or zoning statute, code, ordinance or regulation, whether federal, state or local, said determination being based on investigation by the division, department or agency charged with enforcing said rules or laws. In the event of such state or federal statute, code, ordinance or regulation violation, the Town department of planning and zoning, or its designee, shall promptly notify the permittee of the violation and shall allow the permittee a three-day period in which to correct the violation. If the permittee fails to correct the violation before the expiration of the three-day period, the Town department of planning and zoning, or its designee, shall forthwith suspend the permit and shall notify the permittee of the suspension; or
f. Knowingly employed a person who does not have a valid license as required herein.
(2) The suspension of the permit shall remain in effect until the violation of the applicable statute, code, ordinance or regulation has been corrected.
(h) Revocation of permit.
(1) The Town department of planning and zoning, or its designee, shall revoke a permit if a cause of suspension listed in section 24-244(d) occurs and the permit has been suspended within the preceding twelve (12) months.
(2) The Town department of planning and zoning, or its designee, shall revoke a permit upon determining that:
a. A permittee gave false or misleading information in the material submitted during the application process that tended to enhance the applicant's opportunity for obtaining a permit;
b. A permittee or an employee has knowingly allowed possession, use or sale of controlled substances in or on the premises;
c. A permittee or an employee has knowingly allowed prostitution on the premises;
d. A permittee or an employee knowingly operated the sexually oriented business during a period of time when the permittee's permit was suspended;
e. On two (2) or more occasions within a twelve-month period, a person, or persons, committed an offense occurring in or on the permitted premises, which offense constitutes a specified criminal act for which a conviction has been obtained and the person, or persons, were employees of the sexually oriented business at the time the offenses were committed. The fact that a conviction is being appealed shall have no effect on the revocation of the permit;
f. A permittee is convicted of tax violations for any taxes or fees related to a sexually oriented business;
g. A permittee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or any other specified sexual activities to occur in or on the permitted premises;
h. A permittee has operated, or is operating, more than one sexually oriented business under a single roof under the terms of a single permit; or
i. A permittee has engaged in, or attempted to engage in a transfer of permit in violation of this article.
(3) When the Town department of planning and zoning, or its designee, revokes a permit, the revocation shall continue for one year and the permittee shall not be issued a sexually oriented business permit for a period of one year from the date the revocation became effective. If, subsequent to revocation, the Town department of planning and zoning, or its designee, finds that the basis for revocation has been corrected, the applicant shall be granted a permit if at least ninety (90) days have elapsed since the date revocation became effective. If the permit was revoked, an applicant may not be granted another permit until one year has elapsed.
(i) Judicial review of permit denial, suspension or revocation. After denial of an application, denial of a renewal of an application, or suspension or revocation of a permit, the applicant or permittee may seek judicial review of the administrative action to the Board of Zoning Appeals. Thereafter, the applicant or permittee may seek judicial review of the administrative action in Lake County, Indiana, Superior or Circuit Court.
(j) Transfer of permit.
(1) A permittee shall not operate a sexually oriented business under the authority of a permit at any place other than the address designated in the application for permit.
(2) A permittee shall not transfer his/her permit to another person.
(3) A permittee shall not transfer his/her permit to another location.
(4) Any attempt to transfer a permit, either directly or indirectly, in violation of this section is hereby declared void and the permit shall be deemed revoked upon transfer.