CSHB 367(L&C): "An Act relating to the licensing and regulation of sex-oriented businesses and sex-oriented business entertainers; and providing for an effective date."
00 CS FOR HOUSE BILL NO. 367(L&C) 01 "An Act relating to the licensing and regulation of sex-oriented businesses and sex- 02 oriented business entertainers; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 08.01.010 is amended by adding a new paragraph to read: 05 (38) regulation of sex-oriented businesses and sex-oriented business 06 entertainers under AS 08.90. 07 * Sec. 2. AS 08 is amended by adding a new chapter to read: 08 Chapter 90. Sex-Oriented Businesses and Entertainers. 09 Article 1. Licensing. 10 Sec. 08.90.010. License required. A person may not 11 (1) work as a sex-oriented business entertainer without a sex-oriented 12 business entertainer license; 13 (2) operate a sex-oriented business without a sex-oriented business 14 license;
01 (3) permit a sex-oriented business entertainer to work in a sex-oriented 02 business without a sex-oriented business entertainer license; 03 (4) permit the use of the person's sex-oriented business entertainer 04 license by another person; 05 (5) obtain or attempt to obtain a license under this chapter by 06 fraudulent means. 07 Sec. 08.90.020. Sex-oriented business license. An applicant for a license to 08 operate a sex-oriented business employing sex-oriented business entertainers shall 09 submit to the department, in the manner and on forms prescribed by the department, 10 written evidence, verified by oath, that the applicant meets the qualifications to 11 operate a sex-oriented entertainment business, and that the owner of the premises 12 consents to the operation of the sex-oriented business on the premises. 13 Sec. 08.90.030. Sex-oriented business entertainer license. (a) An applicant 14 for a license to work as a sex-oriented business entertainer shall submit to the 15 department, in the manner and on forms prescribed by the department, written 16 evidence, verified by oath, that the applicant meets the qualifications to work as a sex- 17 oriented business entertainer. 18 (b) A sex-oriented business entertainer license may only be issued to a natural 19 person. 20 Sec. 08.90.040. Regulations for sex-oriented business licenses. The 21 department shall by regulation establish requirements for licensing businesses 22 providing sex-oriented entertainment at the premises specified in the application, 23 licensure and renewal procedures, inspection procedures, standards, fees, and 24 requirements for operation. In adopting regulations under this section, the department 25 shall regulate the following standards of conduct and physical characteristics of 26 licensed premises: 27 (1) unless the sex-oriented business owner resides on the business 28 premises and the sex-oriented business owner is a legal guardian of minors residing in 29 the residential unit, a licensed sex-oriented business premises may not share with any 30 residential unit inhabited by minors a 31 (A) public entrance;
01 (B) restroom or entrance to a restroom; or 02 (C) hallway; 03 (2) the interior layout of the premises of a sex-oriented business must 04 physically separate sex-oriented business entertainers from patrons during 05 performances and ensure that any booth, stall, room, or partitioned portion of a room 06 is open to view from a public room of the premises, except for private offices or other 07 rooms that are not open to any person other than employees, or individual restrooms 08 on the premises; 09 (3) an applicant shall provide satisfactory evidence that the owner of 10 the real property in which the sex-oriented business is conducted consents to the 11 operation of the sex-oriented business; 12 (4) an individual whose name and address is required to be provided 13 with an application for a license under AS 08.90.060 may not have been convicted of 14 any of the following offenses: 15 (A) prostitution or promotion of prostitution; unlawful 16 exploitation of a minor; possession or distribution of child pornography; 17 indecent exposure; sexual assault; sexual abuse of a minor; or any similar sex- 18 related offenses to those described above under the criminal or penal code of 19 this state, other states, or other countries; tax evasion; underage employment; 20 alcohol violations; illegal drugs; allowing a minor to enter and remain within 21 premises where adult entertainment is offered; or any offense causing 22 revocation of a sex-oriented business license or sex-oriented business 23 entertainer license; or 24 (B) an offense for which less than 10 years have elapsed since 25 the date of conviction or the date of release from confinement imposed for a 26 conviction, whichever date is later, if the conviction is of a felony offense. 27 Sec. 08.90.050. Regulations for sex-oriented business entertainer licenses. 28 The department shall by regulation establish requirements for licensing sex-oriented 29 business entertainers, including licensure and renewal procedures. In adopting 30 regulations under this section, the department shall require sex-oriented business 31 entertainers to
01 (1) be at least 21 years of age; 02 (2) receive education about 03 (A) assertiveness training to protect sex-oriented business 04 entertainers against sexual and or physical assaults; 05 (B) wage and hour laws to protect sex-oriented business 06 entertainers against improper pay deduction claims and working hour or 07 condition requirements; and 08 (C) any other area the department considers necessary for 09 protection of the health or safety of sex-oriented business entertainers; and 10 (3) have the other qualifications and training that the department 11 considers necessary. 12 Sec. 08.90.060. Application for license. (a) An applicant for a license shall 13 file with the department a written application, signed and sworn to by the applicant, 14 giving the applicant's name and address. If the applicant is a corporation, the 15 application shall be executed by the authorized officers of the corporation. If the 16 applicant is a partnership, including a limited partnership, the application shall be 17 executed by an authorized general partner. The application must include 18 (1) the type of license desired; 19 (2) the license fee; 20 (3) any other information required by the department. 21 (b) A corporation applying for a sex-oriented business license shall provide 22 the names and addresses of the president, vice-president, secretary, managing officer, 23 and all stockholders who own 10 percent or more of the stock in the corporation, 24 together with any other information required by the department. 25 (c) A partnership, including a limited partnership, that applies for a license 26 shall provide information required by the department including the names and 27 addresses of all general partners and all partners with an interest of 10 percent or 28 more. 29 (d) A limited liability organization that applies for a license shall provide 30 information required by the department, including the names and addresses of all 31 members with an ownership interest of 10 percent or more and the names and
01 addresses of all managers. 02 Sec. 08.90.070. Notice of application for sex-oriented business license. (a) 03 Before a new license is issued, the applicant shall post a copy of the application for 10 04 days at the location of the proposed licensed premises and at any additional locations 05 designated by the department. The department may require the applicant to provide 06 (1) a copy of the application to newspapers and radio and television 07 stations for public service announcement; or 08 (2) paid notice of the application once each week for three successive 09 weeks in a newspaper or by radio. 10 (b) Upon receipt of an application for the issuance or renewal of a license for 11 premises or proposed premises that are located within one-half mile of the boundary of 12 a community council established by municipal charter or ordinance, the department 13 shall 14 (1) immediately provide written notice of the application to 15 (A) the community council; and 16 (B) any nonprofit community organization that has requested 17 notification in writing; and 18 (2) at least 10 days before the date set for departmental action on the 19 application, provide written notice of the proposed action to 20 (A) the community council; and 21 (B) any nonprofit community organization that has requested 22 notification in writing. 23 Sec. 08.90.080. Fees. The department shall set fees under AS 08.01.065 for 24 each of the following: 25 (1) a sex-oriented business license application or renewal; and 26 (2) a sex-oriented business entertainer license application or renewal. 27 Sec. 08.90.090. Grounds for denial, suspension, or revocation of license. 28 The department may deny, suspend, or revoke the license of a person who 29 (1) has obtained or attempted to obtain a license under this chapter by 30 fraud or deceit; 31 (2) has been convicted of a felony or other crime if the felony or other
01 crime is substantially related to the qualifications, functions, or duties of the licensee; 02 or 03 (3) has wilfully or repeatedly violated a provision of this chapter or 04 regulations adopted under it. 05 Sec. 08.90.100. Person and location for sex-oriented business license. (a) 06 Each sex-oriented business license shall be issued to a specific individual or 07 individuals, to a partnership, including a limited partnership, to a limited liability 08 organization, or to a corporation. If the license is issued to a corporation or a limited 09 liability organization, the registered agent of the corporation or limited liability 10 organization is required to be an individual resident of the state. 11 (b) A specific location shall be indicated on the license as the licensed 12 premises, the principal address of which shall be indicated on the license. The mailing 13 address of a licensee or, if the licensee is a corporation, the address of the registered 14 office of the corporation must be kept current and on file in the main office of the 15 department. 16 (c) A license issued by the department is not transferable or assignable. 17 (d) A licensed facility shall report to the department 18 (1) permanent closing; and 19 (2) other matters and occurrences the department may require by 20 regulation. 21 Article 2. Miscellaneous Provisions. 22 Sec. 08.90.300. Disciplinary sanctions. (a) If, after a hearing, the 23 department finds that a licensee has committed an act set out in AS 08.90.090, the 24 department may 25 (1) permanently revoke a license issued under this chapter or suspend a 26 license for a determinate period of time; and 27 (2) impose a civil fine of not more than $10,000. 28 (b) The department may summarily suspend a license before final hearing or 29 during the appeals process if the department finds that the licensee poses a clear and 30 immediate danger to the public health and safety if the licensee continues to work or 31 operate under a license issued under this chapter. A person whose license is
01 suspended under this subsection is entitled to a hearing by the department not later 02 than seven days after the effective date of the order. 03 (c) A person who receives a disciplinary sanction under this section may 04 appeal the sanction to a court of competent jurisdiction. 05 (d) The department shall be consistent in the application of disciplinary 06 sanctions. A significant departure from earlier decisions of the department involving 07 similar situations must be explained in findings of fact or orders made by the 08 department. 09 Sec. 08.90.310. Violations. (a) A person who violates this chapter is guilty 10 of a misdemeanor and, upon conviction, is punishable by a fine of not more than 11 $5,000, or by imprisonment for not more than one year, or by both. Each day of 12 illegal practice is a separate offense. 13 (b) A person who knowingly provides false information in an application for a 14 sex-oriented business license or a sex-oriented business entertainer license is guilty of 15 a misdemeanor and, upon conviction, is punishable by a fine of not more than $5,000, 16 or by imprisonment for not more than one year, or by both, except that a person who 17 knowingly provides false information about the applicant's specified criminal activity 18 is guilty of a class C felony. 19 Sec. 08.90.320. Limitation of liability. An action may not be brought against 20 a person for damages resulting from a report made in good faith to a public agency by 21 the person or participation by the person in an investigation by a public agency or an 22 administrative or judicial proceeding relating to the report if the report relates to a 23 person who has a license under this chapter. 24 Sec. 08.90.330. Accessibility of license and licensed premises to inspection. 25 (a) A sex-oriented business licensee shall, upon request, make the licensed premises 26 available for inspection by officers charged with the enforcement of this chapter, 27 including employees of the department, during all regular business hours. 28 (b) A license for a sex-oriented business issued under this chapter shall be 29 conspicuously posted within the licensed premises so as to be easily viewed by the 30 public and available for inspection upon request by a peace officer or other person 31 during regular business hours.
01 Sec. 08.90.340. License a privilege. (a) A license issued under this chapter 02 is a personal privilege, not a property right. 03 (b) The privilege conferred upon the licensee is personal in nature and affords 04 protection to the licensee only. 05 Sec. 08.90.350. Access of persons under 21 years of age to licensed 06 premises. A licensee or an agent or employee of a sex-oriented business licensee may 07 not with criminal negligence allow a person under 21 years of age to enter and remain 08 within licensed premises. In this section, "criminal negligence" has the meaning given 09 in AS 11.81.900. 10 Sec. 08.90.360. Proof of age. (a) If a sex-oriented business licensee or an 11 agent or employee of the sex-oriented business licensee questions or has reason to 12 question whether a person entering licensed premises has attained the age of 21 years, 13 the licensee, agent, or employee shall require the person to furnish proof of age 14 acceptable under (b) of this section in a form determined by the department. If the 15 person questioned does not furnish proof of age acceptable under (b) of this section, or 16 if a licensee, agent, or employee questions or has reason to question the validity of the 17 proof of age furnished, the licensee, employee, or agent shall require the person to sign 18 a statement that the person is 21 years of age or older. This statement shall be made 19 on a form prepared by and furnished to the licensee by the department. 20 (b) A valid driver's license or a valid identification card is acceptable as proof 21 of age when used for identification in securing entry to and remaining on the premises 22 of a sex-oriented business if the license or identification card is made of or encased in 23 plastic and contains a photograph of the licensee or card holder and a statement of age 24 or date of birth. 25 (c) A licensee or an agent or employee of the licensee may not be charged for 26 a violation of AS 08.90.350 if a signed statement as provided in (a) of this section is 27 secured in good faith, or if a valid driver's license or identification card is presented 28 indicating that the owner and possessor of the presented driver's license or 29 identification card is 21 years of age or older. 30 Sec. 08.90.370. Responsibility of licensees, agents, and employees. A sex- 31 oriented business licensee has a duty to exercise that degree of care that a reasonable
01 person would observe to ensure that a business under the person's control is lawfully 02 conducted. This duty of the licensee includes ensuring the compliance 03 (1) by agents or employees with this chapter and regulations adopted 04 under this chapter, including acting with reasonable diligence to determine that agents 05 or employees are advised of the provisions of this chapter and the regulations adopted 06 under this chapter, either by securing the agent's or employee's written 07 acknowledgment of posted instructions or otherwise; and 08 (2) of the premises with public health, fire, and safety codes and 09 ordinances of the state or municipality having jurisdiction. 10 Article 3. General Provisions. 11 Sec. 08.90.500. Definitions. In this chapter, 12 (1) "department" means the Department of Community and Economic 13 Development; 14 (2) "employee" means a person who performs any service on the 15 premises of a sex-oriented business on a full-time, part-time, contract, or independent 16 basis, whether or not the person is an employee, independent contractor, agent, or 17 otherwise and whether or not the said person is paid a salary, wage, or other 18 compensation by the operator of the sex-oriented business; "employee" does not 19 include a person exclusively on the premises for repair or maintenance of the premises 20 or equipment on the premises, or for the delivery of goods to the premises, nor does 21 "employee" include a person exclusively on the premises as a patron or customer; 22 (3) "nudity" means the appearance of an anus, anal area, pubic area, 23 male genitals, female genitals, or vulva, either bare or with less than a fully opaque 24 covering; or a female breast with less than a fully opaque covering of any part of the 25 areola; 26 (4) "premises" means the real property on which the sex-oriented 27 business is located, including the sex-oriented business, the grounds, private 28 walkways, parking lots, and parking garages of the sex-oriented business under the 29 ownership, control, or supervision of the licensee, as described in the application for a 30 sex-oriented business license under this chapter; 31 (5) "semi-nude" or "semi-nudity" means the appearance of the female
01 breast below a horizontal line across the top of the areola at its highest point; this term 02 includes the entire lower portion of the human female breast, but does not include any 03 portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, 04 leotard, bathing suit, or other wearing apparel if the areola is not exposed in whole or 05 in part; 06 (6) "sex-oriented business" means a person who offers entertainment at 07 a premises for compensation for the sexual interests or titillation of an audience or 08 customers' entertainment involving a person who personally appears before the 09 audience or customers in a state of nudity or semi-nudity; 10 (7) "sex-oriented business entertainer" means an employee of a sex- 11 oriented business who performs one or more services described in (6) of this section 12 for the sexual interests or titillation of an audience or customers; 13 (8) "sex-oriented business license" means a license issued under 14 AS 08.90.020; 15 (9) "sex-oriented business licensee" means a person licensed under 16 AS 08.90.020. 17 * Sec. 3. AS 08.90.010 is repealed and reenacted to read: 18 Sec. 08.90.010. License required. A person may not 19 (1) work as a sex-oriented business entertainer without a sex-oriented 20 business entertainer license; 21 (2) operate a sex-oriented business without a 21 and over sex-oriented 22 business license or an 18 and over sex-oriented business license; 23 (3) permit a sex-oriented business entertainer to work in a sex-oriented 24 business without a sex-oriented business entertainer license; 25 (4) permit the use of the person's sex-oriented business entertainer 26 license by another person; 27 (5) obtain or attempt to obtain a license under this chapter by 28 fraudulent means. 29 * Sec. 4. AS 08.90.020 is repealed and reenacted to read: 30 Sec. 08.90.020. Sex-oriented business license for premises employing 31 entertainers at least 21 years old. An applicant for a license to operate a sex-
01 oriented business employing sex-oriented business entertainers 21 years of age and 02 older at a licensed premises shall submit to the department, in the manner and on 03 forms prescribed by the department, written evidence, verified by oath, that the 04 applicant meets the qualifications to operate a sex-oriented entertainment business, 05 and that the owner of the premises consents to the operation of the sex-oriented 06 business on the premises. A licensee under this section may not employ a sex-oriented 07 business entertainer who is less than 21 years of age. 08 * Sec. 5. AS 08.90 is amended by adding a new section to read: 09 Sec. 08.90.025. Sex-oriented business license for premises employing 10 entertainers at least 18 years old. An applicant for a license to operate a sex- 11 oriented business employing sex-oriented business entertainers 18 years of age and 12 older at a licensed premises shall submit to the department, in the manner and on 13 forms prescribed by the department, written evidence, verified by oath, that the 14 applicant meets the qualifications to operate a sex-oriented entertainment business, 15 and that the owner of the premises consents to the operation of the sex-oriented 16 business on the premises. A licensee under this section may not employ a sex-oriented 17 business entertainer who is less than 18 years of age. 18 * Sec. 6. AS 08.90.050 is repealed and reenacted to read: 19 Sec. 08.90.050. Regulations for sex-oriented business entertainer licenses. 20 The department shall by regulation establish requirements for licensing sex-oriented 21 business entertainers, including licensure and renewal procedures. In adopting 22 regulations under this section, the department shall require sex-oriented business 23 entertainers to 24 (1) be at least 18 years of age; 25 (2) receive education about 26 (A) assertiveness training to protect sex-oriented business 27 entertainers against sexual and or physical assaults; 28 (B) wage and hour laws to protect sex-oriented business 29 entertainers against improper pay deduction claims and working hour or 30 condition requirements; and 31 (C) any other area the department considers necessary for
01 protection of the health or safety of sex-oriented business entertainers; and 02 (3) have the other qualifications and training that the department 03 considers necessary. 04 * Sec. 7. AS 08.90 is amended by adding a new section to read: 05 Sec. 08.90.055. Additional provisions for sex-oriented business entertainer 06 licenses for persons who are under 21 years of age. In addition to educational 07 information required under AS 08.90.050, the department shall by regulation establish 08 educational requirements for entertainer license applicants who are under 21 years of 09 age. An entertainer license applicant shall attend a course developed by the 10 department to inform applicants of career and educational opportunities that are not 11 part of the sex-oriented entertainment business and shall be given counseling on the 12 prevention of sexually transmitted diseases. 13 * Sec. 8. AS 08.90.080 is repealed and reenacted to read: 14 Sec. 08.90.080. Fees. (a) The department shall set fees under AS 08.01.065 15 for each of the following: 16 (1) a 21 and over sex-oriented business license application or renewal; 17 (2) an 18 and over sex-oriented business license application or 18 renewal; and 19 (3) a sex-oriented business entertainer license application or renewal. 20 (b) A sex-oriented business licensee who is entitled to employ sex-oriented 21 business entertainers who are under 21 years of age shall be assessed fees to fully 22 defray the cost of providing the educational and counseling requirements described in 23 AS 08.90.055. 24 * Sec. 9. AS 08.90.350 is repealed and reenacted to read: 25 Sec. 08.90.350. Access of persons under 18 years of age to licensed 26 premises. A licensee or an agent or employee of a sex-oriented business licensee may 27 not with criminal negligence allow a person under 18 years of age to enter and remain 28 within licensed premises. In this section, "criminal negligence" has the meaning given 29 in AS 11.81.900. 30 * Sec. 10. AS 08.90.360 is repealed and reenacted to read: 31 Sec. 08.90.360. Proof of age. (a) If a sex-oriented business licensee or an
01 agent or employee of the sex-oriented business licensee questions or has reason to 02 question whether a person entering licensed premises has attained the age of 18 years, 03 the licensee, agent, or employee shall require the person to furnish proof of age 04 acceptable under (b) of this section in a form determined by the department. If the 05 person questioned does not furnish proof of age acceptable under (b) of this section, or 06 if a licensee, agent, or employee questions or has reason to question the validity of the 07 proof of age furnished, the licensee, employee, or agent shall require the person to sign 08 a statement that the person is 18 years of age or older. This statement shall be made 09 on a form prepared by and furnished to the licensee by the department. 10 (b) A valid driver's license or a valid identification card is acceptable as proof 11 of age when used for identification in securing entry to and remaining on the premises 12 of a sex-oriented business if the license or identification card is made of or encased in 13 plastic and contains a photograph of the licensee or card holder and a statement of age 14 or date of birth. 15 (c) A licensee or an agent or employee of the licensee may not be charged for 16 a violation of AS 08.90.350 if a signed statement as provided in (a) of this section is 17 secured in good faith, or if a valid driver's license or identification card is presented 18 indicating that the owner and possessor of the presented driver's license or 19 identification card is 18 years of age or older. 20 * Sec. 11. AS 08.90.500(8) is amended to read: 21 (8) "sex-oriented business license" means a license issued under 22 AS 08.90.020 or 08.90.025; 23 * Sec. 12. AS 08.90.500(9) is amended to read: 24 (9) "sex-oriented business licensee" means a person licensed under 25 AS 08.90.020 or 08.90.025. 26 * Sec. 13. The uncodified law of the State of Alaska is amended by adding a new section to 27 read: 28 SEVERABILITY. Under AS 01.10.030, the provisions of this Act are severable. 29 * Sec. 14. The uncodified law of the State of Alaska is amended by adding a new section to 30 read: 31 CONTINGENT EFFECT. (a) Sections 3 - 12 of this Act take effect only if a court of
01 competent jurisdiction whose decisions are binding in this state enters a final judgment on the 02 merits that AS 08.90.050(1), added by sec. 2 of this Act, violates the Constitution of the 03 United States or the Constitution of the State of Alaska. 04 (b) The attorney general shall promptly notify the lieutenant governor and the revisor 05 of statutes of the occurrence of the contingency described in (a) of this section. 06 * Sec. 15. Sections 3 - 12 of this Act take effect on the date of the attorney general's 07 notification to the lieutenant governor and to the revisor of statutes under sec. 14(b) of this 08 Act that a court has entered final judgment that AS 08.90.050(1), added by sec. 2 of this Act, 09 violates the Constitution of the United States or the Constitution of the State of Alaska and 10 that the time for an appeal of that judgment has expired or, if an appeal was taken, a final 11 order on the appeal has been entered that AS 08.90.050(1) violates the Constitution of the 12 United States or the Constitution of the State of Alaska. 13 * Sec. 16. Sections 1, 2, 13, and 14 of this Act take effect July 1, 2005.