HB 367: "An Act relating to the licensing and regulation of sex-oriented businesses and sex-oriented business entertainers; relating to protection of the safety and health of and to education of young persons who perform in adult entertainment establishments; and providing for an effective date."
00 HOUSE BILL NO. 367 01 "An Act relating to the licensing and regulation of sex-oriented businesses and sex- 02 oriented business entertainers; relating to protection of the safety and health of and to 03 education of young persons who perform in adult entertainment establishments; and 04 providing for an effective date." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 08.01.010 is amended by adding a new paragraph to read: 07 (38) regulation of sex-oriented businesses and sex-oriented business 08 entertainers under AS 08.90. 09 * Sec. 2. AS 08 is amended by adding a new chapter to read: 10 Chapter 90. Sex-Oriented Businesses and Entertainers. 11 Article 1. Licensing. 12 Sec. 08.90.010. License required. A person may not 13 (1) work as a sex-oriented business entertainer without a sex-oriented 14 business entertainer license;
01 (2) work as a sex-oriented business entertainer in a sex-oriented 02 business except in a business licensed under this chapter; 03 (3) operate a sex-oriented business without a sex-oriented business 04 license; 05 (4) permit a sex-oriented business entertainer to work in a sex-oriented 06 business without a sex-oriented business entertainer license; 07 (5) permit the use of the person's sex-oriented business entertainer 08 license by another person; 09 (6) obtain or attempt to obtain a license under this chapter by 10 fraudulent means. 11 Sec. 08.90.020. Sex-oriented business license. An applicant for a license to 12 operate a sex-oriented business at a licensed premises shall submit to the department, 13 in the manner and on forms prescribed by the department, written evidence, verified 14 by oath, that the applicant meets the qualifications to operate a sex-oriented 15 entertainment business, and that the owner of the premises consents to the operation of 16 the sex-oriented business on the premises. 17 Sec. 08.90.030. Sex-oriented business entertainer license. (a) An applicant 18 for a license to work as a sex-oriented business entertainer shall submit to the 19 department, in the manner and on forms prescribed by the department, written 20 evidence, verified by oath, that the applicant meets the qualifications to work as a sex- 21 oriented business entertainer. 22 (b) A sex-oriented business entertainer license may only be issued to a natural 23 person. 24 Sec. 08.90.040. Regulations for sex-oriented business licenses. The 25 department shall by regulation establish requirements for licensing businesses 26 providing sex-oriented entertainment at the premises specified in the application, 27 licensure and renewal procedures, inspection procedures, standards, fees, and 28 requirements for operation. In adopting regulations under this section, the department 29 shall regulate the following standards of conduct and physical characteristics of 30 licensed premises: 31 (1) unless the sex-oriented business owner resides on the business
01 premises and the sex-oriented business owner is a legal guardian of minors residing in 02 the residential unit, a licensed sex-oriented business premises may not share with any 03 residential unit inhabited by minors a 04 (A) public entrance; 05 (B) restroom or entrance to a restroom; or 06 (C) hallway; 07 (2) the interior layout of the premises of a sex-oriented business must 08 physically separate sex-oriented business entertainers from patrons during 09 performances and ensure that any booth, stall, room, or partitioned portion of a room 10 is open to view from a public room of the premises, except for private offices or other 11 rooms that are not open to any person other than employees, or individual restrooms 12 on the premises; 13 (3) an applicant shall provide satisfactory evidence that the owner of 14 the real property in which the sex-oriented business is conducted consents to the 15 operation of the sex-oriented business; 16 (4) an individual whose name and address is required to be provided 17 with an application for a license under AS 08.90.070 may not have been convicted of 18 any of the following offenses: 19 (A) prostitution or promotion of prostitution; unlawful 20 exploitation of a minor; possession or distribution of child pornography; 21 indecent exposure; sexual assault; sexual abuse of a minor; or any similar sex- 22 related offenses to those described above under the criminal or penal code of 23 this state, other states, or other countries; tax evasion; underage employment; 24 alcohol violations; illegal drugs; allowing a minor to enter and remain within 25 premises where adult entertainment is offered; or any offense causing 26 revocation of a sex-oriented business license or sex-oriented business 27 entertainer license; or 28 (B) an offense for which less than 10 years have elapsed since 29 the date of conviction or the date of release from confinement imposed for a 30 conviction, whichever date is later, if the conviction is of a felony offense. 31 Sec. 08.90.050. Regulations for sex-oriented business entertainer licenses.
01 The department shall by regulation establish requirements for licensing sex-oriented 02 business entertainers, including licensure and renewal procedures. In adopting 03 regulations under this section, the department shall require sex-oriented business 04 entertainers to 05 (1) be at least 19 years of age; 06 (2) receive education about 07 (A) assertiveness training to protect sex-oriented business 08 entertainers against sexual and or physical assaults; 09 (B) wage and hour laws to protect sex-oriented business 10 entertainers against improper pay deduction claims and working hour or 11 condition requirements; and 12 (C) any other area the department considers necessary for 13 protection of the health or safety of sex-oriented business entertainers; and 14 (3) have the other qualifications and training that the department 15 considers necessary. 16 Sec. 08.90.060. Additional provisions for sex-oriented business entertainer 17 licenses for persons who are 19 or 20 years of age. In addition to educational 18 information required under AS 08.90.050, the department shall by regulation establish 19 educational requirements for entertainer license applicants who are 19 or 20 years of 20 age. An entertainer license applicant shall attend a course developed by the 21 department to inform applicants of career and educational opportunities that are not 22 part of the sex-oriented entertainment business and shall be given counseling on the 23 prevention of sexually transmitted diseases. 24 Sec. 08.90.070. Application for license. (a) An applicant for a license shall 25 file with the department a written application, signed and sworn to by the applicant, 26 giving the applicant's name and address. If the applicant is a corporation, the 27 application shall be executed by the authorized officers of the corporation. If the 28 applicant is a partnership, including a limited partnership, the application shall be 29 executed by an authorized general partner. The application must include 30 (1) the type of license desired; 31 (2) the license fee;
01 (3) any other information required by the department. 02 (b) A corporation applying for a sex-oriented business license shall provide 03 the names and addresses of the president, vice-president, secretary, managing officer, 04 and all stockholders who own 10 percent or more of the stock in the corporation, 05 together with any other information required by the department. 06 (c) A partnership, including a limited partnership, that applies for a license 07 shall provide information required by the department including the names and 08 addresses of all general partners and all partners with an interest of 10 percent or 09 more. 10 (d) A limited liability organization that applies for a license shall provide 11 information required by the department, including the names and addresses of all 12 members with an ownership interest of 10 percent or more and the names and 13 addresses of all managers. 14 Sec. 08.90.075. Notice of application for sex-oriented business license. (a) 15 Before a new license is issued, the applicant shall post a copy of the application for 10 16 days at the location of the proposed licensed premises and at any additional locations 17 designated by the department. The department may require the applicant to provide 18 (1) a copy of the application to newspapers and radio and television 19 stations for public service announcement; or 20 (2) paid notice of the application once each week for three successive 21 weeks in a newspaper or by radio. 22 (b) Upon receipt of an application for the issuance or renewal of a license for 23 premises or proposed premises that are located within one-half mile of the boundary of 24 a community council established by municipal charter or ordinance, the department 25 shall 26 (1) immediately provide written notice of the application to 27 (A) the community council; and 28 (B) any nonprofit community organization that has requested 29 notification in writing; and 30 (2) at least 10 days before the date set for departmental action on the 31 application, provide written notice of the proposed action and the time and place for a
01 hearing to 02 (A) the community council; and 03 (B) any nonprofit community organization that has requested 04 notification in writing. 05 Sec. 08.90.080. Fees. (a) The department shall set fees under AS 08.01.065 06 for each of the following: 07 (1) a sex-oriented business license application or renewal; and 08 (2) a sex-oriented business entertainer license application or renewal. 09 (b) A sex-oriented business licensee who employs sex-oriented business 10 entertainers who are 19 or 20 years of age shall be assessed fees to fully defray the 11 cost of providing the educational and counseling requirement described in 12 AS 08.90.060. 13 Sec. 08.90.090. Grounds for denial, suspension, or revocation of license. 14 The department may deny, suspend, or revoke the license of a person who 15 (1) has obtained or attempted to obtain a license under this chapter by 16 fraud or deceit; 17 (2) has been convicted of a felony or other crime if the felony or other 18 crime is substantially related to the qualifications, functions, or duties of the licensee; 19 or 20 (3) has wilfully or repeatedly violated a provision of this chapter or 21 regulations adopted under it. 22 Sec. 08.90.100. Criminal justice information and records. (a) With the 23 application, the department may require an applicant for the issuance of a license 24 under this chapter to submit the applicant's fingerprints and the fees required by the 25 Department of Public Safety for criminal justice information and a national criminal 26 history record check. The department may require an applicant for renewal of a 27 license under this title to submit fingerprints and pay fees as required by this 28 subsection. The department may submit the fingerprints to the Department of Public 29 Safety to obtain a report of criminal justice information under AS 12.62 and a national 30 criminal history record check. The Department of Public Safety may submit the 31 fingerprints to the Federal Bureau of Investigation for a national criminal history
01 record check. The department shall use the information obtained under this section in 02 its determination of an applicant's qualification for issuance, transfer, or renewal of a 03 license. 04 (b) In this section, 05 (1) "applicant" means all individuals whose names and addresses are 06 required to be provided with an application for a license under AS 08.90.070; 07 (2) "criminal justice information" has the meaning given in 08 AS 12.62.900. 09 Sec. 08.90.110. Person and location for sex-oriented business license. (a) 10 Each sex-oriented business license shall be issued to a specific individual or 11 individuals, to a partnership, including a limited partnership, to a limited liability 12 organization, or to a corporation. If the license is issued to a corporation or a limited 13 liability organization, the registered agent of the corporation or limited liability 14 organization is required to be an individual resident of the state. 15 (b) A specific location shall be indicated on the license as the licensed 16 premises, the principal address of which shall be indicated on the license. The mailing 17 address of a licensee or, if the licensee is a corporation, the address of the registered 18 office of the corporation must be kept current and on file in the main office of the 19 department. 20 (c) A license issued by the department is not transferable or assignable. 21 (d) A licensed facility shall report to the department 22 (1) permanent closing; and 23 (2) other matters and occurrences the department may require by 24 regulation. 25 Article 2. Miscellaneous Provisions. 26 Sec. 08.90.300. Disciplinary sanctions. (a) If, after a hearing, the 27 department finds that a licensee has committed an act set out in AS 08.90.090, the 28 department may 29 (1) permanently revoke a license issued under this chapter or suspend a 30 license for a determinate period of time; and 31 (2) impose a civil fine of not more than $10,000.
01 (b) The department may summarily suspend a license before final hearing or 02 during the appeals process if the department finds that the licensee poses a clear and 03 immediate danger to the public health and safety if the licensee continues to work or 04 operate under a license issued under this chapter. A person whose license is 05 suspended under this subsection is entitled to a hearing by the department not later 06 than seven days after the effective date of the order. 07 (c) A person who receives a disciplinary sanction under this section may 08 appeal the sanction to a court of competent jurisdiction. 09 (d) The department shall be consistent in the application of disciplinary 10 sanctions. A significant departure from earlier decisions of the department involving 11 similar situations must be explained in findings of fact or orders made by the 12 department. 13 Sec. 08.90.310. Violations. (a) A person who violates this chapter is guilty 14 of a misdemeanor and, upon conviction, is punishable by a fine of not more than 15 $5,000, or by imprisonment for not more than one year, or by both. Each day of 16 illegal practice is a separate offense. 17 (b) A person who knowingly provides false information in an application for a 18 sex-oriented business license or a sex-oriented business entertainer license is guilty of 19 a misdemeanor and, upon conviction, is punishable by a fine of not more than $5,000, 20 or by imprisonment for not more than one year, or by both, except that a person who 21 knowingly provides false information about the applicant's specified criminal activity 22 is guilty of a class C felony. 23 Sec. 08.90.320. Limitation of liability. An action may not be brought against 24 a person for damages resulting from a report made in good faith to a public agency by 25 the person or participation by the person in an investigation by a public agency or an 26 administrative or judicial proceeding relating to the report if the report relates to a 27 person who has a license under this chapter. 28 Sec. 08.90.330. Accessibility of license and licensed premises to inspection. 29 (a) A sex-oriented business licensee shall, upon request, make the licensed premises 30 available for inspection by officers charged with the enforcement of this chapter, 31 including employees of the department, during all regular business hours.
01 (b) A license for a sex-oriented business issued under this chapter shall be 02 conspicuously posted within the licensed premises so as to be easily viewed by the 03 public and available for inspection upon request by a peace officer or other person 04 during regular business hours. 05 Sec. 08.90.340. License a privilege. (a) A license issued under this chapter 06 is a personal privilege, not a property right. 07 (b) The privilege conferred upon the licensee is personal in nature and affords 08 protection to the licensee only. 09 Sec. 08.90.345. Access of persons under 18 years of age to licensed 10 premises. A licensee or an agent or employee of the licensee may not with criminal 11 negligence allow a person under 18 years of age to enter and remain within licensed 12 premises. In this section, "criminal negligence" has the meaning given in 13 AS 11.81.900. 14 Sec. 08.90.350. Proof of age. (a) If a licensee or an agent or employee of the 15 licensee questions or has reason to question whether a person entering licensed 16 premises has attained the age of 18 years, the licensee, agent, or employee shall 17 require the person to furnish proof of age acceptable under (b) of this section in a form 18 determined by the department. If the person questioned does not furnish proof of age 19 acceptable under (b) of this section, or if a licensee, agent, or employee questions or 20 has reason to question the validity of the proof of age furnished, the licensee, 21 employee, or agent shall require the person to sign a statement that the person is over 22 18 years of age. This statement shall be made on a form prepared by and furnished to 23 the licensee by the department. 24 (b) A valid driver's license or a valid identification card is acceptable as proof 25 of age when used for identification in securing entry to and remaining on the premises 26 of a sex-oriented business if the license or identification card is made of or encased in 27 plastic and contains a photograph of the licensee or card holder and a statement of age 28 or date of birth. 29 (c) A licensee or an agent or employee of the licensee may not be charged for 30 a violation of AS 08.90.345 if a signed statement as provided in (a) of this section is 31 secured in good faith, or if a valid driver's license or identification card is presented
01 indicating that the owner and possessor of the presented driver's license or 02 identification card is 18 years of age or older. 03 Sec. 08.90.360. Responsibility of licensees, agents, and employees. A sex- 04 oriented business licensee has a duty to exercise that degree of care that a reasonable 05 person would observe to ensure that a business under the person's control is lawfully 06 conducted. This duty of the licensee includes ensuring the compliance 07 (1) by agents or employees with this chapter and regulations adopted 08 under this chapter, including acting with reasonable diligence to determine that agents 09 or employees are advised of the provisions of this chapter and the regulations adopted 10 under this chapter, either by securing the agent's or employee's written 11 acknowledgment of posted instructions or otherwise; and 12 (2) of the premises with public health, fire, and safety codes and 13 ordinances of the state or municipality having jurisdiction. 14 Article 3. General Provisions. 15 Sec. 08.90.500. Definitions. In this chapter, 16 (1) "department" means the Department of Community and Economic 17 Development; 18 (2) "employee" means a person who performs any service on the 19 premises of a sex-oriented business on a full-time, part-time, contract, or independent 20 basis, whether or not the person is an employee, independent contractor, agent, or 21 otherwise and whether or not the said person is paid a salary, wage, or other 22 compensation by the operator of the sex-oriented business; "employee" does not 23 include a person exclusively on the premises for repair or maintenance of the premises 24 or equipment on the premises, or for the delivery of goods to the premises, nor does 25 "employee" include a person exclusively on the premises as a patron or customer; 26 (3) "nudity" means the appearance of an anus, anal area, pubic area, 27 male genitals, female genitals, or vulva, either bare or with less than a fully opaque 28 covering; or a female breast with less than a fully opaque covering of any part of the 29 areola; 30 (4) "premises" means the real property on which the sex-oriented 31 business is located, including the sex-oriented business, the grounds, private
01 walkways, parking lots, and parking garages of the sex-oriented business under the 02 ownership, control, or supervision of the licensee, as described in the application for a 03 sex-oriented business license under this chapter; 04 (5) "semi-nude" or "semi-nudity" means the appearance of the female 05 breast below a horizontal line across the top of the areola at its highest point; this term 06 includes the entire lower portion of the human female breast, but does not include any 07 portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, 08 leotard, bathing suit, or other wearing apparel if the areola is not exposed in whole or 09 in part; 10 (6) "sex-oriented business" means a business that offers to the public 11 for the sexual interests or titillation of an audience or customers entertainment 12 involving a person who appears in a state of nudity or semi-nudity; 13 (7) "sex-oriented business entertainer" means an employee of a sex- 14 oriented business who performs one or more services described in (6) of this section to 15 the public for the sexual interests or titillation of an audience or customers. 16 * Sec. 3. AS 08.90.050(1) is repealed and reenacted to read: 17 (1) be at least 18 years of age; 18 * Sec. 4. AS 08.90.060 is repealed and reenacted to read: 19 Sec. 08.90.060. Additional provisions for sex-oriented business entertainer 20 licenses for persons who are under 21 years of age. In addition to educational 21 information required under AS 08.90.050, the department shall by regulation establish 22 educational requirements for entertainer license applicants who are under 21 years of 23 age. An entertainer license applicant shall attend a course developed by the 24 department to inform applicants of career and educational opportunities that are not 25 part of the sex-oriented entertainment business and shall be given counseling on the 26 prevention of sexually transmitted diseases. 27 * Sec. 5. AS 08.90.080(b) is repealed and reenacted to read: 28 (b) A sex-oriented business licensee who employs sex-oriented business 29 entertainers who are under 21 years of age shall be assessed fees to fully defray the 30 cost of providing the educational and counseling requirements described in 31 AS 08.90.060.
01 * Sec. 6. The uncodified law of the State of Alaska is amended by adding a new section to 02 read: 03 SEVERABILITY. Under AS 01.10.030, the provisions of this Act are severable. 04 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 05 read: 06 CONTINGENT EFFECT. (a) Sections 3 - 5 of this Act take effect only if a court of 07 competent jurisdiction whose decisions are binding in this state enters a final judgment on the 08 merits that AS 08.90.050(1), added by sec. 2 of this Act, violates the Constitution of the 09 United States or the Constitution of the State of Alaska. 10 (b) The attorney general shall promptly notify the lieutenant governor and the revisor 11 of statutes of the occurrence of the contingency described in (a) of this section. 12 * Sec. 8. Sections 3 - 5 of this Act take effect on the date of the attorney general's 13 notification to the lieutenant governor and to the revisor of statutes under sec. 7(b) of this Act 14 that a court has entered final judgment that AS 08.90.050(1), added by sec. 2 of this Act, 15 violates the Constitution of the United States or the Constitution of the State of Alaska and 16 that the time for an appeal of that judgment has expired or, if an appeal was taken, a final 17 order on the appeal has been entered that AS 08.90.050(1) violates the Constitution of the 18 United States or the Constitution of the State of Alaska. 19 * Sec. 9. Sections 1, 2, 6, and 7 of this Act take effect January 1, 2005.