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City: NEW ORLEANS
State: Louisiana
Country: US
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Thursday, May 08, 2008
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Current mood:  worried Category: News and Politics
LA Senate Bill 712 SLS 08RS-1571 ORIGINAL
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Regular Session, 2008
SENATE BILL NO. 712
BY SENATOR SMITH
COMMERCIAL REGULATIONS. Provides for the regulation of sexually oriented
businesses and their employees.(gov sig)
1 AN ACT
2 To enact Chapter 55 of Title 51 of the Louisiana Revised Statutes of 1950, to be comprised
3 of R.S. 51:3121 through 3126, relative to the regulation of sexually oriented
4 businesses; to provide for definitions; to provide for regulations; to prohibit the
5 employment of certain sex offenders; to provide for penalties; to provide for
6 severability; to provide for an effective date; and to provide for related matters.
7 Be it enacted by the Legislature of Louisiana:
8 Section 1. Chapter 55 of Title 51 of the Louisiana Revised Statutes of 1950,
9 comprised of R.S. 51:3121 through 3126, is hereby enacted to read as follows:
10 CHAPTER 55. SEXUALLY ORIENTED BUSINESSES
11 §3121. Legislative intent, purpose and findings
12 A. It shall be the purpose of this Chapter to regulate sexually oriented
13 businesses in order to promote the health, safety, and general welfare of the
14 citizens of the state, and to establish reasonable and uniform regulations to
15 prevent the deleterious secondary effects of sexually oriented businesses within
16 the state. The provisions of this Chapter shall have neither the purpose nor the
17 effect of imposing a limitation or restriction on the content or reasonable access
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1 by adults to any communicative materials, including sexually oriented materials
2 which are protected by the First Amendment of the United States Constitution.
3 Additionally, it shall be neither the intent nor the effect of this Chapter to
4 restrict or deny access by adults to sexually oriented materials protected by the
5 First Amendment of the United States Constitution, or to deny access by the
6 distributors and exhibitors of sexually oriented entertainment to their intended
7 market. It shall be neither the intent nor the effect of this Chapter to condone
8 or legitimize the distribution of obscene material.
9 B. The legislature hereby finds the following:
10 (1) Sexually oriented businesses, as a category of commercial
11 enterprises, are associated with a wide variety of adverse secondary effects
12 including, but not limited to, personal and property crimes, prostitution,
13 potential spread of disease, lewdness, public indecency, obscenity, illicit drug
14 use, negative impacts on surrounding properties, urban blight, litter, sexual
15 assault, and sexual exploitation.
16 (2) Sexually oriented businesses should be separated from sensitive land
17 uses to minimize the impact of their secondary effects upon such uses, and
18 should be separated from other sexually oriented businesses, to minimize the
19 secondary effects associated with such uses and to prevent an unnecessary
20 concentration of sexually oriented businesses in one area.
21 (3) Each of the foregoing negative secondary effects constitutes a harm
22 which the state has a substantial government interest in preventing and/or
23 abating. This substantial government interest in preventing secondary effects,
24 which is the state's rationale for this Chapter, exists independent of any
25 comparative analysis between sexually oriented and non-sexually oriented
26 businesses. Additionally, the state's interest in regulating sexually oriented
27 businesses extends to preventing future secondary effects of either current or
28 future sexually oriented businesses that may locate in the state. The state finds
29 that the cases and documentation relied on in this Chapter are reasonably
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1 believed to be relevant to said secondary effects.
2 §3122. Definitions
3 The following words and phrases as used in this Chapter shall have the
4 following meanings unless a different meaning clearly appears from the context:
5 (1)"Adult bookstore or adult video store" means a commercial
6 establishment which, as one of its principal business activities, offers for sale or
7 rental for any form of consideration any one or more of the following: books,
8 magazines, periodicals or other printed matter, or photographs, films, motion
9 pictures, video cassettes, compact discs, digital video discs, slides, or other visual
10 representations which are characterized by their emphasis upon the display of
11 "specified sexual activities" or "specified anatomical areas." For the purpose
12 of this Paragraph, the phrase "principal business activity" exists where the
13 commercial establishment either:
14 (a) Has a substantial portion of its displayed merchandise which consists
15 of said items.
16 (b) Has a substantial portion of the wholesale value of its displayed
17 merchandise which consists of said items.
18 (c) Has a substantial portion of the retail value of its displayed
19 merchandise which consists of said items.
20 (d) Derives a substantial portion of its revenues from the sale or rental,
21 or any form of consideration of said items.
22 (e) Maintains a substantial section of its interior business space for the
23 sale or rental or said items.
24 (f) Maintains an "adult arcade," which means any place to which the
25 public is permitted or invited wherein coin-operated or slug-operated or
26 electronically, electrically, or mechanically controlled still or motion picture
27 machines, projectors, or other image-producing devices are regularly
28 maintained to show images to five or fewer persons per machine at any one
29 time, and where the images so displayed are characterized by their emphasis
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1 upon matter exhibiting "specified sexual activities" or "specified anatomical
2 areas."
3 (2) "Adult cabaret" means a nightclub, bar, juice bar, restaurant, bottle
4 club, or other commercial establishment, regardless of whether alcoholic
5 beverages are served, which regularly features persons who appear semi-nude.
6 (3) "Adult motion picture theater" means a commercial establishment
7 where films, motion pictures, videocassettes, slides, or similar photographic
8 reproductions which are characterized by their emphasis upon the display of
9 "specified sexual activities" or "specified anatomical areas" are regularly
10 shown to more than five persons for any form of consideration.
11 (4) "Characterized by" means describing the essential character or
12 dominant theme of an item. As applied in this Chapter, no business shall be
13 classified as a sexually oriented business by virtue of showing, selling, or renting
14 materials rated NC-17 or R by the Motion Picture Association of America.
15 (5) "Employ, employee, and employment" means any person who
16 performs any service on the premises of a sexually oriented business, on a full
17 time, part time, or contract basis, whether or not the person is denominated an
18 employee, independent contractor, agent, or otherwise. Employee does not
19 include a person exclusively on the premises for repair or maintenance of the
20 premises or for the delivery of goods to the premises.
21 (6) "Establish or establishment" shall mean and include any of the
22 following:
23 (a) The opening or commencement of any sexually oriented business as
24 a new business.
25 (b) The conversion of an existing business, whether or not a sexually
26 oriented business, to any sexually oriented business.
27 (c) The addition of any sexually oriented business to any other existing
28 sexually oriented business.
29 (7) "Influential interest" means any of the following:
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1 (a) The actual power to operate the sexually oriented business or control
2 the operation, management or policies of the sexually oriented business or legal
3 entity which operates the sexually oriented business.
4 (b) Ownership of a financial interest of thirty percent or more of a
5 business or of any class of voting securities of a business.
6 (c) Holding an office (e.g., president, vice president, secretary, treasurer,
7 managing member, managing director, etc.) in a legal entity which operates the
8 sexually oriented business.
9 (8) "Nudity or a state of nudity" means the showing of the human male
10 or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than
11 a fully opaque covering, or the showing of the female breast with less than a
12 fully opaque covering of any part of the nipple and areola.
13 (9) "Operator" means any person on the premises of a sexually oriented
14 business who causes the business to function or who puts or keeps in operation
15 the business or who is authorized to manage the business or exercise overall
16 operational control of the business premises. A person may be found to be
17 operating or causing to be operated a sexually oriented business whether or not
18 that person is an owner, part owner, or licensee of the business.
19 (10) "Person" shall mean individual, proprietorship, partnership,
20 corporation, association, or other legal entity.
21 (11) "Premises" means the real property upon which the sexually
22 oriented business is located, and all appurtenances thereto and buildings
23 thereon, including, but not limited to, the sexually oriented business, the
24 grounds, private walkways, and parking lots and/or parking garages adjacent
25 thereto, under the ownership, control, or supervision of the licensee, as
26 described in the application for a sexually oriented business license.
27 (12) "Regularly" means and refers to the consistent and repeated doing
28 of the act so described.
29 (13) "Semi-nude or state of semi-nudity" means the showing of the
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female breast below a 1 horizontal line across the top of the areola and extending
2 across the width of the breast at that point, or the showing of the male or female
3 buttocks. This definition shall include the lower portion of the human female
4 breast, but shall not include any portion of the cleavage of the human female
5 breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing
6 apparel provided the areola is not exposed in whole or in part.
7 (14) "Semi-nude model studio" means a place where persons regularly
8 appear in a state of semi-nudity for money or any form of consideration in
9 order to be observed, sketched, drawn, painted, sculptured, photographed, or
10 similarly depicted by other persons. This definition does not apply to any place
11 where persons appearing in a state of semi-nudity does so in a modeling class
12 operated:
13 (a) By a college, junior college, or university supported entirely or partly
14 by taxation.
15 (b) By a private college or university which maintains and operates
16 educational programs in which credits are transferable to a college, junior
17 college, or university supported entirely or partly by taxation.
18 (c) In a structure:
19 (i)Which has no sign visible from the exterior of the structure and no
20 other advertising that indicates a semi-nude person is available for viewing.
21 (ii)Where, in order to participate in a class, a student must enroll at least
22 three days in advance of the class.
23 (15) "Sexual device" means any three dimensional object designed and
24 marketed for stimulation of the male or female human genitals, anus, female
25 breast, or for sadomasochistic use or abuse of oneself or others and shall include
26 devices such as dildos, vibrators, penis pumps, and physical representations of
27 the human genital organs. Nothing in this definition shall be construed to
28 include devices primarily intended for protection against sexually transmitted
29 diseases or for preventing pregnancy.
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1 (16) "Sexual device shop" means a commercial establishment that
2 regularly features sexual devices. Nothing in this definition shall be construed
3 to include any pharmacy, drug store, medical clinic, or any establishment
4 primarily dedicated to providing medical or healthcare products or services,
5 nor shall this definition be construed to include commercial establishments
6 which do not restrict access to their premises by reason of age.
7 (17) "Sexual encounter center" means a business or commercial
8 enterprise that, as one of its principal business purposes, purports to offer for
9 any form of consideration, physical contact in the form of wrestling or tumbling
10 between persons of the opposite sex when one or more of the persons is semi11
nude.
12 (18) "Sexually oriented business" means an "adult bookstore or adult
13 video store," an "adult cabaret," an "adult motion picture theater," a "semi14
nude model studio," a "sexual device shop," or a "sexual encounter center."
15 (19) "Specified anatomical areas" means and includes:
16 (a) Less than completely and opaquely covered: human genitals, pubic
17 region; buttock; and female breast below a point immediately above the top of
18 the areola.
19 (b) Human male genitals in a discernibly turgid state, even if completely
20 and opaquely covered.
21 (20) "Specified criminal activity" means any of the following specified
22 offenses, as amended from time to time, for which less than eight years have
23 elapsed since the date of conviction or the date of release from confinement for
24 the conviction, whichever is the later date:
25 (a) Rape and sexual battery offenses as provided for in R.S. 14:41-43.5.
26 (b) Sexual offenses affecting minors as provided for in R.S. 14:80-81.2.
27 (c) Offenses concerning prostitution as is provided for in R.S. 14:82-86.
28 (d) Offenses concerning disorderly places and obscenity as provided for
29 in R.S. 14:104-106.1.
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1 (e) Operating places of prostitution, voyeurism as provided in R.S. 14:
2 281-284.
3 (f) Uniform Controlled Dangerous Substances Law as provided for in
4 R.S. 40:971, et seq.
5 (g ) Money laundering as is provided for in R.S. 14:230.
6 (h) Tax evasion as is provided in R.S. 33:2845.
7 (i) Any attempt, solicitation, or conspiracy to commit one or more of the
8 foregoing offenses.
9 (j) Any offense enumerated in the state law which contains the same
10 elements as one of the foregoing state offenses.
11 (k) Any offense in another jurisdiction that, had the predicate act been
12 committed in Louisiana, would have constituted any of the foregoing offenses.
13 (21) "Specified sexual activity" means any of the following:
14 (a) Intercourse, oral copulation, masturbation or sodomy.
15 (b) Excretory functions as a part of or in connection with any of the
16 activities described in Subparagraph (a) above.
17 (22) "State" means the state of Louisiana.
18 (23) "Substantial" means at least thirty percent of the item so modified.
19 (24) "Viewing room" shall mean the room, booth, or area where a
20 patron of a sexually oriented business would ordinarily be positioned while
21 watching a film, videocassette, digital video disc, or other video reproduction.
22 §3123. Regulations
23 A. No person shall establish a sexually oriented business within one
24 thousand feet of any preexisting primary or secondary school, house of worship,
25 state-licensed day care facility, public library, public park, residence, or other
26 sexually oriented business. This Subsection shall not apply to any sexually
27 oriented business lawfully established prior to the effective date of this Chapter.
28 For purposes of this Subsection, measurements shall be made in a straight line,
29 without regard to intervening structures or objects, from the closest portion the
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1 parcel containing the sexually oriented business to the closest portion of the
2 parcel containing the pre-existing primary or secondary school, house of
3 worship, state-licensed day care facility, public library, public park, residence,
4 or other sexually oriented business.
5 B. No person shall establish a sexually oriented business if a person with
6 an influential interest in the sexually oriented business has been convicted of or
7 pled guilty or nolo contendere to a specified criminal activity as defined in this
8 Chapter.
9 C. No person shall knowingly or intentionally, in a sexually oriented
10 business, appear in a state of nudity.
11 D. No employee shall knowingly or intentionally, in a sexually oriented
12 business, appear in a semi-nude condition unless the employee, while semi-nude,
13 shall be and remain on a fixed stage at least six feet from all patrons and at least
14 eighteen inches from the floor in a room of at least six hundred square feet.
15 E. No employee who appears in a semi-nude condition in a sexually
16 oriented business shall knowingly or intentionally touch a patron or the clothing
17 of a patron in a sexually oriented business.
18 F. A sexually oriented business which exhibits on the premises, through
19 any mechanical or electronic image-producing device, a film, video cassette,
20 digital video disk, or other video reproduction characterized by an emphasis on
21 the display of specified sexual activities or specified anatomical areas shall
22 comply with the following requirements:
23 (1) The interior of the premises shall be configured in such a manner
24 that there is an unobstructed view from an operator's station of every area of
25 the premises, including the interior of each viewing room but excluding
26 restrooms, to which any patron is permitted access for any purpose.
27 (2) An operator's station shall not exceed thirty-two square feet of floor
28 area. If the premises has two or more operator's stations designated, then the
29 interior of the premises shall be configured in such a manner that there is an
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unobstructed view of each 1 area of the premises to which any patron is permitted
2 access for any purpose from at least one of the operator's stations. The view
3 required in this Paragraph shall be by direct line of sight from the operator's
4 station. It is the duty of the operator to ensure that at least one employee is on
5 duty and situated in an operator's station at all times that any patron is on the
6 portion of the premises monitored by that operator station. It shall be the duty
7 of the operator, and it shall also be the duty of any employees present on the
8 premises, to ensure that the view area specified in this Paragraph remains
9 unobstructed by any doors, curtains, walls, merchandise, display racks, or other
10 materials or enclosures at all times that any patron is present on the premises.
11 G. Any sexually oriented business that does not have stage or interior
12 configuration which meets at least the minimum requirements of this Chapter
13 shall be given one hundred eighty days from the effective date of this Act to
14 comply with the stage and building requirements of this Chapter. During the
15 one hundred eighty day period, any employee who appears within view of any
16 patron in a semi-nude condition shall remain, while semi-nude, at least six feet
17 from all patrons.
18 H. No person shall knowingly allow a person under the age of eighteen
19 years on the premises of a sexually oriented business.
20 I. No sexually oriented business shall employee a person who has been
21 convicted of a sex offence as is defined in R.S. 15:541(14.1) and who is subject
22 to registration as a sex offender as is provided in Chapter 3-B of Title 15 of the
23 Louisiana Revised Statutes of 1950.
24 §3124. Scienter required
25 This Chapter shall not impose strict liability. Unless a culpable mental
26 state is otherwise specified herein, a showing of a knowing or reckless mental
27 state is necessary to establish a violation of a provision of this Chapter.
28 Notwithstanding any other provisions of law to the contrary, for the purposes
29 of this Chapter, an act by an employee shall be imputed to the sexually oriented
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business for purposes of finding 1 a violation of this Chapter only if an officer,
2 director, or general partner, or a person who managed, supervised, or
3 controlled the operation of the business premises, knowingly or recklessly
4 allowed such act to occur on the premises. It shall be a defense to liability that
5 the person to whom liability is imputed was powerless to prevent the act.
6 §3125. Penalty; equitable remedies
7 Any person, business, or entity violating or refusing to comply with any
8 provisions of this Chapter shall, upon conviction, be deemed guilty of a
9 misdemeanor and shall be punished by imposition of a fine not to exceed five
10 hundred dollars or by imprisonment for a period not to exceed ninety days, or
11 both. Each day that a violation is permitted to exist or occur, and each separate
12 occurrence, shall constitute a separate offense. Further, any premises, building,
13 dwelling, or other structure in which a sexually oriented business, as defined in
14 this Chapter, is repeatedly operated or maintained in violation of the provisions
15 of this Chapter shall constitute a public nuisance and shall be subject to civil
16 abatement proceedings initiated by the state in a court of competent
17 jurisdiction. Each day that a violation is permitted to exist or occur shall
18 constitute a separate operation or maintenance of the violation.
19 Notwithstanding the foregoing, the state may employ any remedy available at
20 law or in equity to prevent or remedy a violation of any provision of this
21 Chapter.
22 §3126. Local governing authorities; exceptions
23 Nothing in this Chapter shall be construed to prohibit local governing
24 authorities from adopting ordinances which are stricter than the provisions of
25 this Chapter.
26 Section 2. This Act and each Section and provision of said Act hereunder, are hereby
27 declared to be independent divisions and subdivisions and, not withstanding any other
28 evidence of legislative intent, it is hereby declared to be the controlling legislative intent that
29 if any provisions of said Act, or the application thereof to any person or circumstance is held
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to be invalid, the remaining 1 Sections or provisions and the application of such Sections and
2 provisions to any person or circumstances other than those to which it is held invalid, shall
3 not be affected thereby, and it is hereby declared that such Sections and provisions would
4 have been passed independently of such Section or provision so known to be invalid. Should
5 any procedural aspect of this Act be invalidated, such invalidation shall not affect the
6 enforceability of the substantive aspects of this Act.
7 Section 3. This Act shall become effective upon signature by the governor or, if not
8 signed by the governor, upon expiration of the time for bills to become law without signature
9 by the governor, as provided by Article III, Section 18 of the Constitution of Louisiana. If
10 vetoed by the governor and subsequently approved by the legislature, this Act shall become
11 effective on the day following such approval.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Carla S. Roberts.
DIGEST
Proposed law provides that no person shall establish a sexually oriented business within
1,000 feet of any preexisting primary or secondary school, house of worship, state-licensed
day care facility, public library, public park, residence, or other sexually oriented business.
Proposed law shall not apply to any sexually oriented business lawfully established prior to
the effective date of this Act.
Proposed law provides that no person shall establish a sexually oriented business if a person
with an influential interest in the sexually oriented business has been convicted of or pled
guilty or nolo contendere to a specified criminal activity as defined in this proposed law.
Proposed law provides that no person shall knowingly or intentionally, in a sexually oriented
business, appear in a state of nudity.
Proposed law provides that no employee shall knowingly or intentionally, in a sexually
oriented business, appear in a semi-nude condition unless the employee, while semi-nude,
shall be and remain on a fixed stage at least six feet from all patrons and at least 18 inches
from the floor in a room of at least 600 square feet.
Proposed law provides that no employee who appears in a semi-nude condition in a sexually
oriented business shall knowingly or intentionally touch a patron or the clothing of a patron
in a sexually oriented business.
Proposed law provides that no sexually oriented business shall employee a person who has
been convicted of a sex offense who is subject to registration as a sex offender.
Proposed law provides that a sexually oriented business which exhibits on the premises,
through any mechanical or electronic image-producing device, a film, video cassette, digital
video disk, or other video reproduction characterized by an emphasis on the display of
specified sexual activities or specified anatomical areas shall be configured in such a manner
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that there is an unobstructed view from an operator's station of every area of the premises,
including the interior of each viewing room but excluding restrooms, to which any patron
is permitted access for any purpose and an operator's station shall not exceed 32 square feet
of floor area. If the premises has two or more operator's stations designated, then the interior
of the premises shall be configured in such a manner that there is an unobstructed view of
each area of the premises to which any patron is permitted access for any purpose from at
least one of the operator's stations.
Proposed law provides that any sexually oriented business that does not have a stage or
interior configuration which meets at least the minimum requirements of the proposed law
shall be given 180 days from the effective date of this Act to comply with the stage and
building requirements of proposed law.
Proposed law provides that no person shall knowingly allow a person under the age of 18
years on the premises of a sexually oriented business.
Proposed law provides that the provisions of proposed law do not impose strict liability and.
unless a culpable mental state is otherwise specified herein, a showing of a knowing or
reckless mental state is necessary to establish a violation of a provision of this proposed law.
Proposed law provides that any person, business, or entity violating or refusing to comply
with any provisions of proposed law shall, upon conviction, be deemed guilty of a
misdemeanor and shall be punished by imposition of a fine not to exceed $500 or by
imprisonment for a period not to exceed 90 days or both and each day that a violation is
permitted to exist or occur, and each separate occurrence, shall constitute a separate offense.
Provides that proposed law shall be construed to prohibit local governing authorities from
adopting ordinances which are stricter than proposed law.
Effective upon signature of the governor or lapse of time for gubernatorial action.
(Adds R.S. 51:3121-3126)
6:03 PM
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