SECOND SUBSTITUTE BILL NO. BL99-61

An ordinance to amend Title 6, Chapter 6.54 of the Metropolitan Code of Laws concerning sexually oriented businesses.

Whereas, the United States District Court for the Middle District of Tennessee, Nashville Division held in the matter of Déjà vu et al v. the Metropolitan Government et al., Docket Numbers 3-97-1066 and 3-97-1176, that the plaintiffs are likely to be successful on their challenge to the sections of the ordinance barring a sexually oriented business from obtaining a license for a period of years because the operator of the business was convicted of the crime of obscenity and the court believes that this prohibition is unconstitutional; and,

Whereas, the United States District Court also held that the plaintiffs are likely to be successful on their challenge to the sections of the ordinance requiring a criminal background investigation of the operators of sexually oriented businesses and entertainers engaged in sexually oriented entertainment because these sections are unconstitutional and they involve an investigation into whether or not the operator or entertainer has been convicted of the crime of obscenity; and,

Whereas, the United States District Court also held that the plaintiffs are likely to succeed on their challenge to the section of the ordinance requiring a fee to obtain a license to operate a sexually oriented business or entertain in a sexually oriented business because that fee includes the cost of a criminal background check of the applicant to determine whether or not that applicant has been convicted of the crime of obscenity and that portion of the fee is unconstitutional; and,

Whereas, the United States District Court held that the plaintiffs are likely to succeed on the merits of their claim that the definition of the terms "sexually oriented" and "sexually oriented theater" were overly broad even though the definitions of the terms "sexually oriented nightclub" and "sexually oriented entertainment" were held to be constitutional and not overly broad by the Court; and

Whereas, though the Metropolitan Government does not concede that barring applicants from obtaining a sexually oriented license or permit because of a prior conviction for the crime of obscenity is unconstitutional, that to conduct a criminal background check to discover if an applicant has been convicted of the crime of obscenity is unconstitutional, that charging the applicants the cost of a criminal background check to discover if the applicants have been convicted of the crime of obscenity is unconstitutional or that the definitions of the terms "sexually oriented" and "sexually oriented entertainment" were overly broad; and

Whereas, it is the Metropolitan Government’s objective to resume regulation of the sexually oriented businesses within its jurisdiction without the delays that would most likely occur if the United States District Court’s temporary injunction order were appealed; and

Whereas, amending the ordinance to comply with the most recent ruling of the United States District Court will give the Metropolitan Government the opportunity to move to dissolve the temporary injunction and proceed with enforcement of its ordinance as quickly as possible, the following amendments are proposed.

Now therefore, be it enacted by the Metropolitan Council of Nashville and Davidson County as follows:

Section 1. Sections 6.54.010(D) of the Metropolitan Code of Laws (hereinafter "MCL") as amended by 099-1814 is amended by deleting the word "obscenity" from the definition of "Crimes of a sexual nature" before the words "or crimes committed in a jurisdiction" and after the words "patronizing prostitution, promoting prostitution,"

Section 2. Section 6.54.010(O) of the MCL as amended by 099-1814 is amended by deleting this subsection in its entirety.

Section 3. Section 6.54.010(Y) of the MCL as amended by 099-1814 is amended by deleting this subsection in its entirety and substituting in lieu therefore the following:

"Sexually oriented" when used to modify film, movie, motion picture, videocassette, slides, or other photographic reproductions shall mean a film, movie, motion picture videocassette, slides or other photographic reproduction that regularly depicts material which is distinguished or characterized by an emphasis on matter depicting or describing "specified sexual activities" or specified anatomical areas" offered for observation by the patron(s) on the premises of a sexually oriented business.

Section 4. Section 6.54.010(Z)(3) of the MCL as amended by 099-1814 is amended by deleting this subsection in its entirety and substituting the following in lieu therefore:

3. "Sexually oriented theater" is an enclosed building in which films, motion pictures, videocassettes, slides, or other photographic reproductions that are distinguished or characterized by an emphasis on depictions of "specified sexual activities" or "specified anatomical areas," as defined in this section, are regularly presented for observation by patrons therein.

Section 5. Section 6.54.010 of the MCL as amended by 099-1814 is amended by adding a new definition and renumbering this subsection as appropriate.

"Sexually oriented material" shall mean "sexually oriented entertainment" and/or any material, including films, movies, motion pictures, videocassettes, slides, or other photographic reproductions, which regularly depicts material which is distinguished or characterized by an emphasis on matter depicting or describing "specified sexual activities" or specified anatomical areas" offered for observation by the patron(s) on the premises of a sexually oriented business.

Section 6. Section 6.54.090 of the MCL as amended by 099-1814 is amended by deleting the words "five hundred" and substituting in lieu therefore the words "three hundred fifty" after the words "A license fee of" and before the words "dollars shall be submitted with the application" and by deleting the words "one hundred" and substituting in lieu therefore the word "fifty" after the words "A permit fee of" and before the words "dollars shall be submitted with the application".

Section 7. This Ordinance shall take effect from and after its passage, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Chris Ferrell

LEGISLATIVE HISTORY
Second Substitute Introduced:	December 7, 1999
Referred to:	Codes Committee Health, Hospitals & Social Services Committee
Deferred:	December 7, 1999
Passed Second Reading:	December 21, 1999
Passed Third Reading:	January 18, 2000
Approved:	January 20, 2000
By: