SECOND REGULAR SESSION
93RD GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES STEVENSON (Sponsor), McGHEE, WILSON (130), SMITH (150), ICET, EMERY, BAKER (123), KINGERY, PRATT, RUESTMAN, WILSON (119), FAITH, PHILLIPS, BEARDEN, JETTON, WOOD, DAY AND WRIGHT (159) (Co-sponsors).
Read 1st time March 27, 2006 and copies ordered printed.
STEPHEN S. DAVIS, Chief Clerk
AN ACT
To repeal sections 67.2540, 67.2546, 67.2552, 567.080 and 573.503, RSMo, and to enact in lieu thereof nine new sections relating to sexually-oriented businesses, with penalty provisions.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 67.2540, 67.2546, 67.2552, 567.080 and 573.503, RSMo, are repealed and nine new sections enacted in lieu thereof, to be known as sections 67.2540, 67.2546, 67.2548, 67.2552, 67.2554, 67.2556, 311.488, 567.080, and 573.503, to read as follows:
67.2540. As used in sections 67.2540 to 67.2556, the following terms mean:
(1) "Adult cabaret", a nightclub, bar, restaurant, or similar establishment in which persons regularly appear in a state of nudity, as defined in section 573.500, RSMo, or seminudity in the performance of their duties;
(2) "Employee", a person who is at least twenty-one years of age and who performs any service on the premises of a sexually oriented business on a full-time, part-time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise, and whether or not said person is paid a salary, wage, or other compensation by the operator of said business. The term employee does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises;
(3) "Nudity" or a "state of nudity", the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or anal cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state;
(4) "Nuisance", any place in or upon which lewdness, assignation, or prostitution is conducted, permitted, continued, or exists, or any place, in or upon which lewd, indecent, lascivious, or obscene films, or films designed to be projected for exhibition, are photographed, manufactured, developed, screened, exhibited, or otherwise prepared or shown, and the personal property and contents used in conducting and maintaining any such place for any such purpose. The provisions of this section shall not affect any newspaper, magazine, or other publication entered as second class matter by the post office department;
(5) "Person", an individual, proprietorship, partnership, corporation, association, or other legal entity;
(6) "Seminude" or in a "seminude condition", a state of dress in which opaque clothing fails to cover the genitals, anus, anal cleft or cleavage, pubic area, vulva, nipple and areola of the female breast below a horizontal line across the top of the areola at its highest point. Seminudity shall include the entire lower portion of the female breast, but shall not include any portion of the cleavage of the human female breast exhibited by wearing apparel provided the areola is not exposed in whole or part;
(7) "Sexually oriented business", an adult cabaret or any business which offers its patrons goods of which a substantial or significant portion are sexually oriented material. It shall be presumed that a business that derives thirty percent or less of its revenue from sexually oriented materials is presumed not to be a sexually oriented business. No building, premises, structure, or other facility that contains any sexually oriented business shall contain any other kind of sexually oriented business;
(8) "Sexually oriented materials", any pictorial or three- dimensional material, or film, motion picture, DVD, video cassette, or similar photographic reproduction, that depicts nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, as defined in section 573.010, RSMo;
(9) "Specified criminal activity" includes the following offenses:
(a) Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution, or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; engaging in organized criminal activity; sexual assault; molestation of a child; gambling prohibited under Missouri law; or distribution of a controlled substance; or any similar offenses described in this subdivision under the criminal or penal code of other states or countries;
(b) For which:
a. Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense;
b. Less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense; or
c. Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the last conviction, whichever is the later date, if the convictions are of two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any twenty-four-month period;
(c) The fact that a conviction is being appealed shall not prevent a sexually oriented business from being considered a nuisance and closed under section 67.2546;
(10) "Specified sexual activities" includes the following acts:
(a) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
(b) Sex acts, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy; or
(c) Excretory functions as part of or in connection with any of the activities set forth in this subdivision.
67.2546. 1. A person who operates or causes to be operated a sexually oriented business shall be prohibited from exhibiting in a viewing room on the premises a film, video cassette, DVD, or other video reproduction that depicts specified sexual activities unless the viewing room is visible from a continuous main aisle in the sexually oriented business and such viewing room is not obscured by any curtain, door, wall, or other enclosure. No viewing room shall be occupied by more than one individual at a time and there shall be no aperture between viewing rooms which is designed or constructed to facilitate sexual activity between persons in different rooms.
2. If a sexually oriented business allows specified criminal activity or specified sexual activity on its premises or otherwise fails to comply with the provisions of subsection 1 of this section, it shall be considered a nuisance as defined by section 67.2540, and shall be closed pursuant to section 567.080, RSMo.
3. A person violating the provisions of subsection 1 of this section is guilty of a class A misdemeanor.
67.2548. A sexually-oriented business shall not employ any person less than twenty-one years of age. Any person who employs a person less than twenty-one years of age is guilty of a class A misdemeanor.
67.2552. 1. It shall be a class A misdemeanor for a person, in a sexually-oriented business, to knowingly and intentionally appear in a state of nudity or depict, simulate, or perform specified sexual activities.
2. It shall be a class A misdemeanor for a person to appear knowingly or intentionally in a sexually-oriented business in a seminude condition unless the person is an employee who, while seminude, shall be at least ten feet from any patron or customer and on a stage at least two feet from the floor and behind a railing no less than twenty-four inches in height.
3. It shall be a class A misdemeanor for an employee, while seminude, to touch a customer or the clothing of a customer.
4. It shall be a class A misdemeanor if a person knowingly allows on the premises of a sexually oriented business a person under the age of twenty-one years, except for a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.
5. The provisions of sections 67.2540 to [67.2552] 67.2556 are designed to protect the following public policy interest of this state, including but not limited to: to mitigate the adverse secondary effects of sexually-oriented businesses, to limit harm to minors, and to reduce prostitution, crime, juvenile delinquency, deterioration in property values and lethargy in neighborhood improvement efforts.
67.2554. 1. Any county, city, town, or village may create an ordinance requiring sexually-oriented businesses to be licensed and may collect a nonrefundable deposit fee to be paid prior to the processing of the licensing application. The application for such a license shall require the applicant to provide the following information:
(1) The applicant's name;
(2) The applicant's age, date of birth, and place of birth;
(3) The address and telephone number of the applicant's present residence;
(4) The address and telephone number of the applicant's present business;
(5) The number on the applicant's driver's license or other state-issued identification card;
(6) The date on which the applicant's driver's license or other state-issued identification card was issued;
(7) The state that issued the applicant's driver's license or other state-issued identification card;
(8) Written proof that the individual is at least twenty-one years of age.
2. A license shall not be issued to any person who has been found guilty of or pled guilty to a felony or misdemeanor relating to sexual offenses under chapter 566, RSMo, or obscenity offenses under chapter 573, RSMo, in the past ten years.
67.2556. For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of all counties, cities, towns, and villages is hereby empowered to regulate and restrict the location of sexually oriented businesses in accordance with the general zoning powers granted to cities, towns, and villages under section 89.020, RSMo, counties with a charter form of government under section 64.090, RSMo, counties of the first classification under section 64.255, RSMo, counties of the second and third classification under section 64.620, RSMo, and all counties except those with a charter form of government under section 64.850, RSMo.
311.488. The supervisor of the division of alcohol and tobacco control shall not issue a license to sell intoxicating liquor or nonintoxicating beer to a sexually-oriented business as defined by section 67.2540, RSMo.
567.080. 1. Any room, building or other structure regularly used for sexual contact for pay as defined in section 567.010 or any unlawful prostitution activity prohibited by this chapter or any building, place, or the ground itself, in or upon which any lewdness or assignation is conducted, permitted, continued, or exists is a public nuisance.
2. Any person who erects, establishes, continues, maintains, uses, owns, or leases any building or other place for the purpose of lewdness, assignation, sexual contact for pay as defined in section 567.010 or any unlawful prostitution activity prohibited by this chapter is guilty of maintaining a nuisance and on conviction shall be punished by a fine not to exceed one thousand dollars or by imprisonment in the county jail for a period not to exceed one year, or by both the fine and imprisonment.
3. The attorney general, circuit attorney or prosecuting attorney may, in addition to all criminal sanctions, prosecute a suit in equity to enjoin the nuisance. If the court finds that [the] any owner, lessee, sublessee, employee, or agent of the owner, assignee, or partner of the owner of the room, building or its grounds, or structure knew or had reason to believe that the premises were being used regularly for sexual contact for pay or unlawful prostitution activity, or any act of lewdness or assignation, the court may order that the premises shall not be occupied or used for such period as the court may determine, not to exceed one year.
[3.] 4. All persons, including owners, partners, lessees, sublessees, officers, agents, inmates or employees, aiding or facilitating such a nuisance may be made defendants in any suit to enjoin the nuisance, and they may be enjoined from engaging in any sexual contact for pay or unlawful prostitution activity anywhere within the jurisdiction of the court.
[4.] 5. Appeals shall be allowed from the judgment of the court as in other civil actions.
573.503. 1. Notwithstanding any provision of law to the contrary, any city not within a county and any county may, by order or ordinance, require a background check be conducted on all employees of any adult cabaret or sexually-oriented business as defined in section 67.2540, RSMo, to ascertain whether any such employees have been convicted of or have pled guilty to any misdemeanor or felony involving prostitution or aiding or abetting prostitution, drug possession or trafficking, money laundering, tax evasion, or illegal gambling activity.
2. If an order or ordinance is created that requires employees of an adult cabaret or sexually-oriented business as defined in section 67.2540, RSMo, to complete a background check under subsection 1 of this section, a violation of such an order or ordinance shall be a class B misdemeanor.
•