H-1696

AN ACT Relating to adult entertainment businesses; amending RCW 7.48A.010 and 7.48A.040; adding a new chapter to Title 18 RCW; adding a new section to chapter 43.43 RCW; prescribing penalties; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. It is the purpose of this chapter to regulate certain adult entertainment businesses to promote the health, safety, and welfare of the citizens of the state of Washington. The legislature finds that these businesses, when unregulated, promote illegal activities including assaults, drug offenses, and prostitution.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Adult cabaret" means a nightclub, bar, restaurant, or similar commercial establishment which regularly features persons who appear in a state of nudity or semi-nude.

(2) "Adult entertainment business" means an adult cabaret or adult theater.

(3) "Adult theater" means a theater, concert hall, auditorium, or similar commercial establishment which regularly features live performances where persons appear in a state of nudity or semi-nude.

(4) "Applicant" means a person or persons applying for a license under this chapter, including each partner of a partnership and each officer and director of a corporation.

(5) "Department" means the department of licensing.

(6) "Licensee" means a person or persons in whose name a license has been issued under this chapter.

(7) "Nudity" means the appearance of a human bare buttock, anus, genital, or breast, or a state of dress which fails to opaquely cover a human buttock, anus, genital, or areola of the breast.

(8) "Semi-nude" means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the breast, as well as portions of the body covered by supporting straps or devices.

NEW SECTION. Sec. 3. (1) It is unlawful for a person, partnership, or corporation, to own or operate an adult entertainment business in the state of Washington unless such person, partnership, or corporation, has obtained a license pursuant to this chapter.

(2) An application for a license must be made on a form provided by the department. The applicant shall provide: (a) The name, address, phone number, and date of birth of the applicant; (b) two passport-size color photographs of the applicant; (c) the applicant's principal occupation; (d) a description of the proposed establishment; (e) the nature of the proposed business; (f) location of the proposed business; (g) a record of all prior criminal convictions; and (h) such other information as the department may require by rule.

(3) The department shall require the applicant to submit to fingerprinting to assist the Washington state patrol in conducting a background check under section 18 of this act.

NEW SECTION. Sec. 4. (1) For the purpose of considering an application for a license, the department may cause an inspection of the premises to be made, and may inquire into all matters in connection with the construction and operation of the premises. For the purpose of reviewing a application for a license and for considering the denial, suspension, or revocation of a license, the department may consider any prior criminal conduct or prior violations of the provisions of this chapter by the applicant, and the provisions of RCW 9.95.240 and chapter 9.96A RCW shall not apply to such cases. The department may, in its discretion, grant or refuse the license applied for.

(2) Every license shall be issued in the name of the applicant or applicants, and the holder thereof shall not allow any other person to use the license.

(3) No license may be issued to:

(a) An applicant who is not a resident of this state at the time of making the application;

(b) A partnership or corporation, unless qualified to obtain a license, as provided in this chapter;

(c) An applicant whose place of business is conducted by a manager or agent, unless such manager or agent possesses the same qualifications required of the licensee;

(d) A corporation, unless it was created under the laws of the state of Washington or holds a certificate of authority to transact business in the state of Washington;

(e) An applicant who is under eighteen years of age;

(f) An applicant who has failed to provide information reasonably necessary for issuance of the license or who has falsely answered a question or request for information on the application form;

(g) An applicant who has proposed the location of the business within a zone where such use is prohibited by the local authority.

(4) Before the department issues a license to an applicant it shall give notice of such application to the chief executive officer of the incorporated city or town, if the application is for a license within an incorporated city or town, or to the county legislative authority, if the application is for a license outside the boundaries of incorporated cities or towns; and such incorporated city or town, through the official or employee selected by it, or the county legislative authority or the official or employee selected by it, shall have the right to file with the department within twenty days after date of transmittal of such notice, written objections against the applicant or against the premises for which the license is asked, and shall include with such objections a statement of all facts upon which such objections are based, and in case written objections are filed, may request and the department may in its discretion hold a formal hearing subject to the applicable provisions of Title 34 RCW. Upon the granting of a license under this chapter the department shall send a duplicate of the license or written notification to the chief executive officer of the incorporated city or town in which the license is granted, or to the county legislative authority if the license is granted outside the boundaries of incorporated cities or towns.

(5) Before the department issues a license to an applicant, it shall give (a) due consideration to the location of the business to be conducted under such license with respect to the proximity of churches, public and private schools, and public institutions, and (b) written notice by certified mail of the application to churches, schools, and public institutions within one thousand five hundred feet of the premises to be licensed. The department shall issue no license covering any premises, if such premises are within one thousand five hundred feet of the premises of any elementary or secondary school measured along the most direct route over or across established public walks, streets, or other public passageway from the outer property line of the school grounds to the nearest public entrance of the premises proposed for license, and if, after receipt by the school or public institution of the notice as provided in this subsection, the department receives written notice, within twenty days after posting such notice, from an official representative or representatives of the school within one thousand five hundred feet of said proposed licensed premises, indicating to the department that there is an objection to the issuance of such license because of proximity to a school. For the purpose of this section, church shall mean a building erected for and used exclusively for religious worship and schooling or other activity in connection therewith.

NEW SECTION. Sec. 5. (1) The department may, in its discretion, subject to the provisions of section 15 of this act, suspend or cancel a license; and all rights of the licensee hereunder shall be suspended or terminated, as the case may be.

(2) Upon receipt of notice of the suspension or cancellation of a license, the licensee shall forthwith deliver the license to the department. Where the license has been suspended only, the department shall return the license to the licensee at the expiration or termination of the period of suspension.

NEW SECTION. Sec. 6. (1) Every license issued under this chapter shall be subject to all conditions and restrictions imposed by this chapter and all applicable rules of the department. All conditions and restrictions imposed by the department in the issuance of an individual license shall be listed on the face of the individual license along with the trade name, address, and expiration date.

(2) Every licensee shall post and keep posted its license in a conspicuous place on the premises.

NEW SECTION. Sec. 7. The department shall not issue a license to a transferee until the transferee has applied for and received a license under this chapter.

NEW SECTION. Sec. 8. (1)(a) At the time of the original issuance of a license, the department shall prorate the license fee charged to the new licensee according to the number of calendar quarters, or portion thereof, remaining until the first renewal of that license is required.

(b) Unless sooner canceled, every license issued by the department shall expire at midnight of the thirtieth day of June of the fiscal year for which it was issued. However, if the department deems it feasible and desirable to do so, it may establish, by rule pursuant to chapter 34.05 RCW, a system for staggering the annual renewal dates for the license authorized by this chapter. If such a system of staggered annual renewal dates is established by the department, the license fees provided by this chapter shall be appropriately prorated during the first year that the system is in effect.

(2) The adult entertainment license fee shall be seven hundred fifty dollars per annum and shall be paid at the time of application. One-half of the fee shall be refunded if the application is withdrawn prior to a denial of the license by the department.

NEW SECTION. Sec. 9. (1) The holder of one or more licenses may not assign and transfer the license except for transfer to the surviving spouse of a deceased licensee if the parties were maintaining a marital community and the license was issued in the names of one or both of the parties.

(2) A change in the officers or directors of a licensed corporation or a change in the manager or agent must be reported to the department within thirty days, and such persons must meet the department's approval under section 4 of this act. A fee of seventy‑five dollars will be charged for the processing of such change.

NEW SECTION. Sec. 10. The department in suspending a license may further provide in the order of suspension that such suspension shall be vacated upon payment to the department by the licensee of a monetary penalty in an amount then fixed by the department.

NEW SECTION. Sec. 11. (1) It is unlawful for a performer to appear in an adult entertainment business in a state of nudity or semi-nude, unless such performer has obtained a license pursuant to this chapter.

(2) An application for a performer's license must be made on a form provided by the department. The performer shall provide the following: (a) The performer's name, including all aliases, address, phone number, and date of birth; (b) Two passport-size color photographs of the performer; (c) principal occupation; (d) the name and address of the business at which the performer will perform; (e) a record of all prior criminal convictions, if any; and (f) such other information as the department may require by rule.

(3) The department shall require the applicant to submit to fingerprinting to assist the Washington state patrol in conducting a background check under section 18 of this act.

(4) No license may be issued to:

(a) A performer who is under eighteen years of age;

(b) A performer who has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form.

(5) The department may use its discretion in issuing a license if the performer has violated the provisions of this chapter or been convicted of an offense in chapter 9.38, 9.40, 9.41, 9.44, 9.45, 9.46, 9.47, 9.54, 9.61, 9.68, 9.68A, 9.69, 9.72, 9A.32, 9A.36, 9A.40, 9A.44, 9A.48, 9A.52, 9A.56, 9A.60, 9A.88, 69.41, 69.50, 69.52, or 69.53 RCW; and (i) less than two years have elapsed since the date of the conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a misdemeanor or gross misdemeanor offense; or (ii) less than five years have elapsed since the date of the 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 of two misdemeanor or gross misdemeanor offenses occurring within any twenty-four month period.

(6) The performer license fee shall be seventy-five dollars per annum and shall be paid at the time of application. One-half of the fee shall be refunded if the application is withdrawn prior to denial of the license by the department.

(7) The department shall issue a temporary performer's license valid for a period of five days, if the department is unable to determine the performer's qualifications for an annual license within twenty-four hours from the time of application.

(8) Every performer shall keep his or her license on the premises while performing.

NEW SECTION. Sec. 12. There is hereby imposed an admissions tax of one dollar upon all customers of adult entertainment businesses within the state. The tax provided for in this section shall be collected by the business and remitted to the state treasurer for deposit in the public safety education account established under RCW 43.08.250.

NEW SECTION. Sec. 13. Every licensee under this chapter shall make monthly reports to the department pursuant to rule. The reports shall include the following: (1) The number of customers patronizing the business during the month; (2) the name, address, and date of birth of all employees appearing in a state of nudity or semi-nude during the month; and (3) such further information as the department may require.

NEW SECTION. Sec. 14. The department, for the purpose of maintaining public health, safety, and welfare, may limit the number of licenses issued in each county.

NEW SECTION. Sec. 15. The action, order, or decision of the department as to a denial of an application for the reissuance of a license or as to a revocation, suspension, or modification of a license is an adjudicative proceeding and subject to the applicable provisions of chapter 34.05 RCW.

(1) An opportunity for a hearing may be provided an applicant for the reissuance of a license prior to the disposition of the application, and if no such opportunity for a prior hearing is provided then an opportunity for a hearing to reconsider the application must be provided the applicant.

(2) An opportunity for a hearing must be provided a licensee prior to a revocation or modification of a license and, except as provided in subsection (4) of this section, prior to the suspension of a license.

(3) No hearing shall be required until demanded by the applicant or licensee.

(4) The department may summarily suspend a license or permit for a period of up to thirty days without a prior hearing if it finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order; and proceedings for revocation or other action must be promptly instituted and determined.

NEW SECTION. Sec. 16. No provision in this chapter limits the authority of local jurisdictions from further regulating adult entertainment businesses as to hours of operation, location of premises, or manner of operation.

The provisions of this chapter relating to the licensing of any adult entertainment business shall not be exclusive and any political subdivision of the state of Washington within whose jurisdiction the adult entertainment business is located may require any registrations or licenses, or charge any fee for the same or similar purpose; and nothing herein shall limit or abridge the authority of any political subdivision to levy and collect a general and nondiscriminatory license fee levied upon all businesses, or to levy a tax based upon gross business conducted by any firm within said political subdivision.

NEW SECTION. Sec. 17. Sections 1 through 16 of this act shall constitute a new chapter in Title 18 RCW.

NEW SECTION. Sec. 18. A new section is added to chapter 43.43 RCW to read as follows:

The department of licensing may request of the Washington state patrol criminal identification system information regarding the conviction of offenses listed under section 11(5) of this act for any applicant as defined in section 2 of this act.

Sec. 19. RCW 7.48A.010 and 1990 c 152 s 4 are each amended to read as follows:

The definitions set forth in this section shall apply throughout this chapter.

(1) "Community" means residents of the state of Washington or any local voting jurisdictions within its borders, or both. "Community standards" may be expressed and established by majority vote of duly elected representatives of the people on the town, city, county, or state level of government, or any combination thereof, or by direct ballot initiative in any state or local election.

(2) "Knowledge" or "knowledge of such nuisance" means having knowledge of the contents and character of the patently offensive sexual or violent conduct which appears in the lewd matter, or knowledge of the acts of lewdness or prostitution which occur on the premises, or knowledge that controlled substances identified in Article II of chapter 69.50 RCW and not authorized by that chapter, are manufactured, delivered or possessed, or where any such substance not obtained in a manner authorized by chapter 69.50 RCW is consumed by ingestion, inhalation, or injection or any other means.

((~~(2)~~)) (3) "Lewd matter" is synonymous with "obscene matter" and means any matter:

(a) Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; and

(b) Which explicitly depicts or describes patently offensive representations or descriptions of:

(i) Ultimate sexual acts, normal or perverted, actual or simulated; or

(ii) Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals ((or)), genital area, or areola; or

(iii) Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape or torture; and

(c) Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value.

((~~(3)~~)) (4) "Lewdness" shall have and include all those meanings which are assigned to it under the common law.

((~~(4)~~)) (5) "Live performance" means any play, show, skit, dance, or other exhibition performed or presented to or before an audience of one or more, in person or by electronic transmission, with or without consideration.

((~~(5)~~)) (6) "Matter" shall mean a live performance, a motion picture film, or a publication or any combination thereof.

((~~(6)~~)) (7) "Motion picture film" shall include any:

(a) Film or plate negative;

(b) Film or plate positive;

(d) Film, glass slides, or transparencies, either in negative or positive form, designed for exhibition by projection on a screen;

(e) Video tape or any other medium used to electronically reproduce images on a screen.

((~~(7)~~)) (8) "Person" means any individual, partnership, firm, association, corporation, or other legal entity.

((~~(8)~~)) (9) "Place" includes, but is not limited to, any building, structure, or places, or any separate part or portion thereof, whether permanent or not, or the ground itself.

((~~(9)~~)) (10) "Prurient" means that which incites lasciviousness or lust.

((~~(10)~~)) (11) "Publication" shall include any book, magazine, article, pamphlet, writing, printing, illustration, picture, sound recording, or coin-operated machine.

((~~(11)~~)) (12) "Sale" means a passing of title or right of possession from a seller to a buyer for valuable consideration, and shall include, but is not limited to, any lease or rental arrangement or other transaction wherein or whereby any valuable consideration is received for the use of, or transfer of possession of, lewd matter.

Sec. 20. RCW 7.48A.040 and 1985 c 235 s 1 are each amended to read as follows:

(1) No person shall with knowledge maintain a moral nuisance.

(2) Upon a determination that a defendant has with knowledge maintained a moral nuisance, the court shall impose a civil fine and judgment of an amount as the court shall determine to be appropriate. In imposing the civil fine, the court shall consider the wilfulness of the defendant's conduct and the profits made by the defendant attributable to the lewd matter, lewdness, or prostitution, whichever is applicable. In no event shall the civil fine exceed the greater of ((~~twenty-five~~)) fifty thousand dollars or these profits.

NEW SECTION. Sec. 21. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 22. This act shall take effect January 1, 1992.