Opinion
Case No. 07-15393.
October 8, 2008
MEMORANDUM AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DISMISSING THE CASE
The Court originally scheduled this matter for hearing. Upon review of the parties' papers, however, the Court finds that oral argument is not necessary. See E.D. Mich. LR 7.1(e)(2).
I. Introduction
This is a First Amendment case involving a sexually oriented business ("SOB"). Plaintiff Garter Belt, Inc., is a topless bar ("Garter Belt") operating in the Charter Township of Van Buren, Michigan ("Van Buren"). Garter Belt challenges Article VII of Van Buren's Code of Ordinances, which deals with the licensing of SOBs ("Ordinance"). Garter Belt's Complaint is in four counts:
The Ordinance is attached as Exhibit A.
(I) Twenty-two constitutional violations under 42 U.S.C. § 1983;
(II) Declaratory Judgment, specifically that the Court should declare that Garter Belt is not required to obtain a license from Van Buren and that the Ordinance unconstitutional;
(III) Preliminary and Permanent Injunctive Relief prohibiting Van Buren from enforcing the Ordinance; and
(IV) Attorney Fees and Costs under 42 U.S.C. § 1988.
Before the Court is Van Buren's motion for summary judgment. For the reasons below, the motion will be granted. As will be explained, Garter Belt has no standing to raise the issue of unlawful prior restraint of pre-existing SOBs or to bring a Fourth Amendment challenge, and misreads the Legal Fee provision of the Ordinance.
II. Background
Garter Belt has been in operation since 1983 and has never applied for a license under the Ordinance, which took effect in 1999. The Sixth Circuit struck down two sections of the Ordinance as unconstitutional for granting broad licensing discretion to governmental officials in the absence of special rules guaranteeing an "unusually speedy judicial decision." Bronco's Entm't, Ltd. v. Charter Twp. of Van Buren, 421 F.3d 440, 449 (6th Cir. 2005) (quoting City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 784)). The court gave effect to the Ordinance's severability clause, allowing the rest of the Ordinance to stand.Id. ("With §§ 22-403(i)(7) and 22-403(j) removed, the ordinance satisfies the requirements of the First Amendment."). Nevertheless, in a footnote to its finding that Van Buren's licensing scheme preserves the status quo for an applicant seeking to open a new SOB, the court noted:
The licensing ordinance might not preserve the status quo for some other applicants. We can find no provision allowing sexually oriented businesses that were in operation at the time the ordinance became effective to continue operating while applying for a license. Nor is there a provision allowing continued operation during judicial review of a decision to suspend or revoke, or not to renew, a license. These issues are not before us here, obviously.Id. n. 4. Garter Belt ultimately raises the issue here under unlawful prior restraint.
Garter Belt complained broadly of twenty-two violations "in whole and/or in part, alone or in combination with one another, facially and as applied . . . [of] the First, Fourth, and Fourteenth Amendments" without citing any provisions of the Ordinance. Garter Belt claims that since the Ordinance was adopted, Van Buren has developed no procedure for the licensing of Garter Belt as a pre-existing SOB, although inquiries have been made to obtain such a license. Despite the absence of license procedures pertaining to its situation, Garter Belt says, Van Buren officials, including police officers, have attempted to enforce the Ordinance, sending officials and private detectives into the bar to photograph or videotape expressive dancing, "under threat of prosecution."
Van Buren has filed the instant motion for summary judgment on the basis of res judicata, citing the upholding of most of the Ordinance in Bronco's and asserting that the plaintiff in that case was a privy for Garter Belt.
In its response to the motion, Garter Belt denies that Bronco's Entertainment and Garter Belt are privies for each other and points out that the issues involved are different, as Bronco's was a new applicant whereas Garter Belt is a pre-existing SOB. Garter Belt then narrows its grounds of attack to: (1) unlawful prior restraint, (2) legal fee challenge, and (3) Fourth Amendment challenge.
In its reply brief, Van Buren says that Garter Belt's claims should be dismissed for lack of standing. The three narrowed issues will be analyzed in turn.
III. Legal Standards A. Summary Judgment
Summary judgment will be granted when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party."Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The nonmoving party may not rest upon his pleadings; rather, the nonmoving party's response "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). Showing that there is some metaphysical doubt as to the material facts is not enough; "the mere existence of a scintilla of evidence" in support of the nonmoving party is not sufficient to show a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Rather, the nonmoving party must present "significant probative evidence" in support of its opposition to the motion for summary judgment in order to defeat the motion. See Moore v. Philip Morris Co., 8 F.3d 335, 340 (6th Cir. 1993); see also Anderson, 477 U.S. at 249-50. The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson, 477 U.S. at 251-52). The Court "must view the evidence in the light most favorable to the non-moving party." Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir. 1995). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255. Only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law may summary judgment be granted.Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir. 2001).
B. 12(b)(6) Dismissal
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), "a complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory." Mezibov v. Allen, 411 F.3d 712, 716 (6th Cir. 2005). The court "`must accept as true well-pleaded facts set forth in the complaint'. . . . [and] construe the complaint in a light most favorable to the plaintiffs and determine whether the plaintiffs undoubtedly can prove no set of facts in support of their claims that would entitle them to relief." Ley v. Visteon Corp., 540 F.3d 376, 380 (6th Cir. 2008) (internal quotation marks omitted) (quoting P.R. Diamonds, Inc. v. Chandler, 364 F.3d 671, 680 (6th Cir. 2004)).
IV. Analysis A. Res Judicata
The doctrine of res judicata precludes "parties or their privies from relitigating issues that were or could have been raised" in a prior action. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1995). A claim is precluded where all four of the following elements exist:
(1) a final decision on the merits by a court of competent jurisdiction; (2) a subsequent action between the same parties or their privies; (3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and (4) an identity of the causes of action.Kane v. Magna Mixer Co., 71 F.3d 555, 560 (6th Cir. 1995).
Van Buren says that Bronco's was a privy of Garter Belt but provides no evidence for this assertion. In addition, the Sixth Circuit noted in Bronco's that the Ordinance might not preserve the status quo for pre-existing SOBs as applicants, and this issue has not been litigated. Therefore, Garter Belt's claim of unlawful prior restraint is not precluded by res judicata.
B. Unlawful Prior Restraint
Section 22-402 of the Ordinance reads:
(a) It shall be unlawful for any owner to operate a sexually oriented business without a valid license, issued by the township for the particular type of sexually oriented business.
(b) Any owner violating any provision of this article shall, upon conviction, be guilty of a misdemeanor and be punished as provided in section 1-13. Each day such violation shall continue shall constitute a separate offense.
Charter Township of Van Buren, Mich., Code of Ordinances art. VII, § 22-402 (1999).
Garter Belt alleges that section 22-402 acts as an unlawful prior restraint on the expressive erotic dancing that Garter Belt features because the licensing scheme does not provide for preservation of the status quo of a pre-existing SOB during the application process. Garter Belt says that licensing schemes in a municipal ordinance that regulates SOBs constitute a prior restraint that must incorporate certain procedural safeguards. Garter Belt argues it can find no provision in the licensing scheme that permits it to continue operating while applying for a license, nor a provision to allow operation during judicial review of a decision to deny, suspend, revoke, or not renew a license. Because the Ordinance fails to provide for preservation of the status quo for Garter Belt as a pre-existing SBO, Garter Belt claims the licensing scheme is unconstitutional.
Van Buren says that Garter Belt has no standing because it has not established an injury in fact. Van Buren argues that section 22-402 has not inflicted any injury on Garter Belt because Garter Belt has been allowed to operate even though it has not applied for a license and does not have a license.
Van Buren also argues that no prior restraint exists because since section 22-402 became effective in 1999, Garter Belt has never had to seek prior approval from any Van Buren official regarding erotic dancing. Rather, Van Buren says, Garter Belt has been allowed to operate even though it does not have a license and has never applied for a license. Van Buren points out that no provision in the Ordinance prevents a previously operating SOB from continuing to operate while applying for a license.
A plaintiff is required to establish injury in fact as to each provision of an ordinance. See Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 350 (6th Cir. 2007). As an SOB, Garter Belt is subjected to the restraints of Van Buren's licensing scheme regardless of whether it has applied for a license. "It shall be unlawful for any owner to operate a sexually oriented business without a valid license, issued by the township for the particular type of sexually oriented business." § 22-402(a) (emphasis added). Further, the Sixth Circuit has left open the possibility that the prior restraint of the licensing scheme may not preserve the status quo of pre-existing SOBs because of a lack of explicit provision for such businesses during the application period. Bronco's, 421 F.3d at 449 n. 4.
Garter Belt, however, has suffered no injury. It has been in operation since 1983, a period that includes the nine years since the Ordinance was adopted. Garter Belt does not dispute the fact that it has been allowed to operate even though it has not applied for a license and does not have a license. Therefore, Garter Belt has no standing to bring an unlawful prior restraint challenge to section 22-402 and this claim will be dismissed.
C. Legal Fees
The Ordinance also provides:
The applicant must acknowledge that all information provided to the township is true and accurate, and must further agree to be liable for the payment of the township's legal fees in the event the township is successful in any administrative or judicial proceedings alleging a violation of these provisions.
§ 22-403(f).
Garter Belt claims that section 22-403(f) is a prima facie violation of access to the courts. Van Buren replies that Garter Belt does not have standing to challenge this provision as Garter Belt has never applied for a license and the provision does not apply to claims brought against it. Regardless of whether Garter Belt has standing, it misreads section 22-403(f). The provision addresses only proceedings that Van Buren initiates alleging a violation and in which it prevails. Section 22-403(f) has no bearing whatsoever upon any action that Garter Belt or any other plaintiff might bring against Van Buren. Therefore, Van Buren's licensing scheme cannot in any way be interpreted as a violation of access to the courts or as an agreement to refrain from exercising one's constitutional rights. Garter Belt's claim will be dismissed.
D. Fourth Amendment Challenge
The Ordinance further provides:
An applicant or licensee shall permit representatives of the police department, health department, fire department, and building department to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law prior to or at any time it is occupied or open for business.
§ 22-404(d).
Garter Belt argues that the Fourth Amendment's warrant requirement extends to administrative searches and to commercial establishments. Garter Belt says that excepted warrantless searches of closely regulated businesses must be limited in time, place, and scope. Furthermore, Gart Belt contends, SOBs do not even fall in the category of closely related businesses.
Van Buren replies that Garter Belt has no standing to challenge the constitutionality of section 22-404(d). The provision applies only to applicants and licensees, says Van Buren, and Garter Belt is neither. Van Buren also points out that Garter Belt has suffered no injury because Van Buren has never attempted and does not intend to inspect Garter Belt's premises pursuant to this provision as Garter Belt is neither an applicant nor licensee.
Although the Supreme Court has recognized an exception to the warrant requirement when the target of the search is a "closely regulated" industry, warrantless searches of even closely regulated businesses must be "carefully limited in time, place, and scope." New York v. Burger, 482 U.S. 691, 700-03 (1987). One district court has held that while there is a "narrow exception to the warrant requirement for administrative searches conducted in `closely regulated' industries, sexually oriented businesses do not quality as highly regulated industries." J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp. 2d 1032, 1040 (N.D. Ohio 1999). "[B]ecause sexually oriented businesses enjoy a degree of First Amendment protection, the government probably could not `closely regulate' them . . . without running afoul of the First Amendment." Id. A court in this district has recently held that one city's cabaret ordinance "is likely to violate the Fourth Amendment due to the requirement that an owner `open every portion of any cabaret or club cabaret for inspection.'" Top Flight, Inc. v. City of Inkster, 2007 WL 643897 (E.D. Mich. 2007) (emphasis added by the court) (quoting Inkster, Mich., Cabaret Ordinance § 113.202 (2006)).
Nevertheless, "a plaintiff is required to establish injury in fact as to each provision challenged." Prime Media, 485 F.3d at 350. Garter Belt is bringing a Fourth Amendment challenge to section 22-404(d). The Spoons court "assume[d]" standing, 49 F. Supp. at 1040, and the Top Flight court did not address the question of standing. But Garter Belt has shown no injury or imminent threat of injury under section 22-404(d) and therefore has no standing to challenge it. The Court will dismiss Garter Belt's Fourth Amendment challenge.
V. Conclusion
For the reasons explained above, the Court DISMISSES Garter Belt's challenge to section 22-402 for unlawful prior restraint of pre-existing SOBs for lack of standing, DISMISSES Garter Belt's challenge to the Legal Fees provision for failure to state a claim upon which relief can be granted, DISMISSES Garter Belt's Fourth Amendment challenge for lack of standing, and GRANTS Van Buren's Motion for Summary Judgment.
This case is DISMISSED.
SO ORDERED.
EXHIBIT A ORDINANCE 02-16-99(3) Adopted 3/2/99 Article VII — Sexually Oriented Businesses (Overall SOB Regulatory Ordinance — As Adopted)
ALERT : Sec. 22-403(i)(7) and Sec. 22-403(j) Declared Unconstitutional and Stricken by 6th Circuit Court of Appeals in Bronco Case
CHARTER TOWNSHIP OF VAN BUREN ORDINANCE NO. 02-16-99(3)
The Charter Township of Van Buren ordains:That the Code of Ordinances, Charter Township of Van Buren, Michigan, is hereby amended by adding an article, containing sections to be numbered 22-401 through 22-440, which sections shall read as follows:
ARTICLE VII — SEXUALLY ORIENTED BUSINESSES
Sec. 22-401 Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
(a) Achromatic means colorless or lacking in saturation or hue. The term includes but is not limited to grays, tans and light earth tones. The term does not include white, black or any bold coloration that attracts attention.
(b) Adult Arcade means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, internet, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are maintained to show images and where the images so displayed are distinguished or characterized by the depicting or describing of "sexually explicit activities" or "specified anatomical areas."
(c) Adult Bookstore or Adult Video Store means a commercial establishment which offers for sale or rental for any form of consideration, occupying 15 percent or more of the floor area of the establishment, any one or more of the following:
(1) books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video matter or photographs, cassettes or video reproductions, slides, or other visual representation which depict or describe "sexually explicit activities" or "specified anatomical areas"; or
(2) instruments, devices, or paraphernalia which are designed for use in connection with "sexually explicit activities."
(d) Adult Cabaret means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(1) persons who appear in a state of restricted nudity; or
(2) live performances which are characterized by the partial exposure of "specified anatomical areas" or
(3) films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "sexually explicit activities" or "specified anatomical areas."
(e) Adult Motel means a hotel, motel or similar commercial establishment which:
(1) offer accommodations to the public for any form of consideration; provide patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of "sexually explicit activities" or "specified anatomical areas"; and has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or
(2) permit patrons to be filmed or photographed performing "sexually explicit activities" or displaying "specified anatomical areas" for electronic transmission over the World Wide Web; or
(3) offer a sleeping room for rent for a period of time that is less than 10 hours; or
(4) allow a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than 10 hours.
(f) Adult Motion Picture Theater means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of "sexually explicit activities" or "specified anatomical areas."
(g) Adult Theater means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of "specified anatomical areas" or by the performance of "sexually explicit activities.
(h) Business Day means any day the Township Clerk's office is open for business, and does not include Saturday, Sunday, a legal holiday, or a day on which weather or other conditions have made the Township Clerk's office inaccessible.
(i) Escort means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
(j) Escort Agency means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration.
(k) Establishment means and includes any of the following:
(1) the opening or commencement of any sexually oriented business as a new business;
(2) the conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
(3) the addition of any sexually oriented business to any other existing sexually oriented business; or
(4) the location or relocation of any sexually oriented business.
(l) Nude Model Studio means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration.
(m) Nudity or a State of Nudity means the appearance of a human bare buttock, anus, male genitals, female genitals, or female breast, as defined by MCL 41.181(3); MSA 5.45(3).
(n) Semi-Nude means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.
(o) Sexual. Encounter Center means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
(1) physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(2) activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nude or permits patrons to display or to be filmed or photographed performing "sexually explicit activities" or displaying "specified anatomical areas" for electronic transmission over the World Wide Web.
(p) Sexually Explicit Activities means and includes any of the following:
(1) the fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
(2) sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;
(3) masturbation, actual or simulated;
(4) excretory functions as part of or in connection with any of the activities set forth in (1) through (3) above; or
(5) any activity intended to arouse, appeal to or gratify a person's lust passions or sexual desires.
(q) Sexually Oriented Business means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, sexual encounter center, or similar establishment, or any place that permits patrons to be filmed or photographed performing "sexually explicit activities" or displaying "specified anatomical areas" for electronic transmission over the World Wide Web.
(r) Specified Anatomical Areas means and includes any of the following:
(1) less than completely and opaquely covered human genitals, pubic region or pubic hair; buttock: or female breast or breasts or any portion thereof that is situated below a point immediately above the top of the areola; or any combination of the foregoing: or
(2) human genitals in a state of sexual arousal, even if opaquely and completely covered.
(s) Transfer of Ownership or Control of a sexually oriented business means and includes any of the following:
(1) the sale, lease, or sublease of the business and/or substantially all of its assets;
(2) the transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means: or
(3) the establishment of a trust, gift, or other simllar 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.
Sec. 22-402 License Required for Sexually Oriented Business; Penalty for Violation of Article.
(a) It shall be unlawful for any owner to operate a sexually oriented business without a valid license, issued by the Township for the particular type of sexually oriented business.
(b) Any owner violating any provision of this article shall, upon conviction, be guilty of a misdemeanor and be punished as provided in section 1-13. Each day such violation shall continue shall constitute a separate offense.
Sec. 22-403 Application; Review Process; Bases for Denial.
(a) Any owner desiring to operate a sexually oriented business for which a license is required, shall first make application to the Township Clerk for a license on a form provided by the Township Clerk.
(b) The application must also be accompanied by a plan of operation prepared in accordance with the Sexually Oriented Business Application Information Sheet provided by the Township Clerk.
(c) At the time the application is filed, a non-refundable application fee, as set forth in subsection 22-404(c), shall be remitted to the Township Treasurer and shall be in addition to any other fee required by this Code.
(d) If an owner who wishes to operate a sexually oriented business is an individual, he or she must sign the application for a license as the applicant If an owner who wishes to operate a sexually oriented business is other than an individual, each individual who has a 10% or greater interest in the business must sign the application for a license as an applicant Each applicant must meet all requirements set forth in this article, and each applicant shall be considered a licensee if a license is granted.
(e) At the time the completed application for a sexually oriented business is submitted, the Township Clerk will check the application for completeriess of information within 10 business days of the date the application is submitted. If the application is determined to be incomplete, it shall within 10 business days be returned to the applicant with a written statement identifying all deficiencies or missing information prior to resubmission to the Township Clerk.
(f) The applicant must acknowledge that all information provided to the Township is true and accurate, and must further agree to be liable for the payment of the Township's legal fees in the event the Township is successful in any administrative or judicial proceedings alleging a violation of these provisions.
(g) Following the determination of completeness by the Township Clerk, the Township Clerk will within 4 business days forward the application to any two of the three full-time elected Township officials, who shall within 30 business days of having received the application from the Township Clerk, make a decision to approve or deny a license to operate a sexually oriented business.
(h) Within the aforementioned 30-business day period, written reviews shall be prepared by the chief of police, fire department, and building department As part of the review process, representatives of the respective Township departments may inspect the proposed premises to determine compliance with the requirements herein.
(i) The following may constitute the basis for denial of a license to operate a sexually oriented business:
(1) An applicant is under 18 years of age.
(2) An applicant is overdue in his or her payment to the Township of taxes, fees, fines, or penalties assessed against or imposed in relation to a sexually oriented business.
(3) An applicant has failed to provide information reasonably necessary for the issuance of the license or has falsely answered a question or request for information on the application forms.
(4) An applicant has been convicted of a violation of a provision of this section, other than the offense of operating a sexually oriented business without a license, within 2 years immediately preceding the filing of the application. The fact that a conviction is being appealed shall have no consideration.
(5) The premises to be used for the sexually oriented business has not been approved by the health department, fire department, or building official; or the premises is not in compliance with applicable laws and ordinances.
(6) The license fee required by this section has not been paid.
(7) An applicant has owned, operated, or been employed in a sexually oriented business in a managerial capacity within the preceding 12 months and has demonstrated an inability to operate or manage a sexually oriented business premises in a peaceful and law-abiding manner.
(8) An applicant has a record of conviction for an offense involving gambling, narcotics, prostitution, pandering pornography, public indecency, sexual assauit, or any violation of any provision of this article within the preceding 2 years. The fact that a conviction is being appealed shall be of no consideration.
(9) The applicant is not in compliance with applicable zoning ordinances.
(j) A license may also be denied if the chief of police determines that the applicant is presently unfit to operate a sexually oriented business due to the applicant's overall criminal record, regardless of the date of any. criminal conviction. In determining present fitness or unfitness under this section, the chief of police shall consider the following factors:
(1) The extent and nature of past criminal activities;
(2) The age at the time of the commission of the crime;
(3) The amount of time that has elapsed since the last illegal activity;
(4) The conduct and work activity prior to and following the illegal activity;
(5) Evidence of any rehabilitation or rehabilitative effort while incarcerated or following release; and
(6) Other evidence of present fitness, including letters of recommendation from prosecution, law enforcement, and correctional officers who prosecuted, arrested, or had custodial responsibility for that person, the sheriff and chief of police in the community where the applicant resides, and any other persons in contact with the applicant It is the responsibility of the applicant, to the extent reasonably possible, to secure and provide necessary and reliable evidence required to determine present fitness.
Sec. 22-404 License Expiration; Renewal; Application and Renewal Fees; Continued Right to Inspect Premises.
(a) A license under this article shall expire one year from the date of issuance.
(b) A licensee under this article shall be entitled to a renewal of the license after: the Township police have completed a criminal record check of the police department's record bureau; except when the license has been suspended or revoked, upon presentation of the previous license or presentation of an affidavit as to its loss or destruction to the Township Clerk; filing of a completed renewal form provided by the Township Clerk; payment of a non-refundable renewal fee as provided in subsection 22-404(c); and review and approval of the renewal application by two of the three full-time elected Township officials. Application for renewal must be made at least 30 business days prior to the expiration of the existing license to allow adequate time for review and decision by the Township.
(c) The initial fee for a sexually oriented business license is $750. For any existing sexually oriented business as of the effective date of this ordinance, the fee for a license is $250. The annual renewal fee for a sexually oriented business is $250. All fees shall be subject to annual review by the Township Board of Trustees, and such fees may from time to time be changed by resolution of the Township Board of Trustees.
(d) An applicant or licensee shall permit representatives of the police department, health department, fire department, and building department to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law prior to or at any time it is occupied or open for business.
Sec. 22-405 Suspension; Revocation
(a). The Township shall suspend a license for a period of 30 days or until compliance, if it determines that a licensee or an employee of a licensee has:
(1) Violated or is not in compliance with this article;
(2) Knowingly permitted alcohol consumption or engaged in excessive alcohol consumption on the premises of a sexually oriented business, with the exception of an adult motel;
(3) Refused to allow an inspection of the sexually oriented business premises as authorized by this article;
(4) Knowingly permitted gambling by any person on the sexually oriented business premises;
(5) Demonstrated an inability to operate or manage a sexually oriented business in a peaceful and law-abiding manner thus necessitating action by law enforcement officers;
(6) Allowed, authorized, conducted, or engaged in any criminal activity on the premises;
(7) Provided any false information to the Township on any initial or renewal application sheet.
(b) The Township shall revoke a license if a basis for suspension in subsection 22-405(a) occurs and the license has been suspended within the preceding 12 months.
(c) The Township shall revoke a license if it is determined that
(1) A licensee gave false or misleading information in the material submitted to the Township during the application or renewal process;
(2) A licensee or an employee has knowingly allowed possession, use, or sale of controlled substances on the premises;
(3) A licensee or an employee has knowingly allowed prostitution on the premises;
(4) A licensee or an employee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended;
(5) A licensee has been convicted of an offense listed in subsection 22-403(i)(8) for which the time period required has not elapsed;
(6) On two or more occasions within a 12-month period, a person or persons committed an offense occurring In or on the licensed premises of a crime listed in subsection 22-403(i)(8) or subsection 22-106(a), 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;
(7) A licensee or an employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or sexual contact to occur in or on the licensed premises;
(8) The plan of operation has been changed or the premises was enlarged without approval of the Township.
(d) The fact that a conviction is being appealed shall have no effect on the revocation of the license.
(e) Subsection (c)(7) does not apply to adult motels as a ground for revoking the license.
(f) When the Township revokes a license or permit, the revocation shall continue for one year and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. If, subsequent to revocation, the Township finds that the basis for the revocation has been corrected or abated, the applicant may be granted a license if at least 90 days have elapsed since the date the revocation became effective. If the license was revoked under subsection 22-403(i)(8), an applicant may not be granted another license until the appropriate number of years required has elapsed since the termination of any sentence, parole, or probation.
Sec. 22-406 Appeals
If the Township denies the issuance of a license or denies the renewal of a license or the Township revokes or suspends an existing license the aggrieved party may appeal that decision pursuant to MCL 7.101.
Sec. 22-407 Transfer of License
A licensee shall not transfer his license to another, nor shall a licensee operate a sexually oriented business under the authority of a license at any place other than the address designated in the application.
Sec. 22-408 Severability; Repealer
(a) Every word, sentence, clause and provision of this article is hereby declared to be severable, and if any word, sentence, clause, provision or part thereof is declared to be invalid by a court of competent jurisdiction, the remaining provisions shall not be affected.
(b) The provisions of any or all code sections or subparts thereof in conflict herewith are repealed only to the extent necessary to give this article full force and effect.
Sec. 22-409 Effective Date
The provisions of this article shall become effective upon its passage by the VanBuren Charter Township Board of Trustees and upon publication in accordance with the Township Charter and the statutes of the State of Michigan.
Sec. 22-410-22.440 Reserved.CLARK, NONE. ROCHOWIAK. 03-02-99 02-25-99 03 03-11-99
Yea BUDD, KING, FOSTER, HERMAN AND HART. Nay Absent Ordinance Declared Adopted: ______________________________ Cindy C. King, Township Clerk ______________________________ Helen Foster, Supervisor Adopted: Published: -11-99 Effective: