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2.
BY-LAW
HARMONIZATION – BUSINESS LICENSING – ADULT ENTERTAINMENT STORES HARMONISATION
DES RÈGLEMENTS MUNICIPAUX – PERMIS D’ENTREPRISE – MAGASINS DE VENTES DES
VIDEOS POUR ADULTES |
That
Council approve amendments to Licensing By-law No. 2002-189 to establish
harmonized regulations for licensing and regulating of Adult Entertainment
Stores, as attached in Document 1 and as amended by the following:
Recommandations modifiÉes
du comité
Que le Conseil approuve les
modifications du règlement no 2002‑189 sur les permis
afin d’harmoniser la réglementation sur la délivrance de permis touchant les
magasins de divertissement pour adultes, comme le précise le document 1 ci‑joint
et selon la modification suivante :
Documentation
1.
Deputy City Manager, Community and Protective
Services report dated
18
August 2005 (ACS2005-CPS-BYL-0031).
2. Extract of
Minutes 16, Emergency and Protective Services Committee,
25 August 2005
Report to/Rapport
au :
Emergency
and Protective Services Committee
Comité des services de protection et d'urgence
and Council / et au Conseil
18 August 2005 / le 18 août
2005
Submitted
by/Soumis par : Steve Kanellakos, Deputy City Manager,
Community and Protective Services / Directeur général adjoint
Services communautaires et de protection
Contact Person / personne-ressource :Susan Jones,
Director,,By-law Services /
Directrice, Services des règlements municipaux
580-2424, ext/poste 25536, susan.jones@ottawa.ca
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Ref
N°: ACS2005-CPS-BYL-0031 |
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SUBJECT: |
By-law
harmonization – Business licensing – adult ENtertainment stores |
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OBJET : |
HARMONISATION
DES RÈGLEMENTS MUNICIPAUX - PERMIS D’ENTREPRISE – MAGASINS DE DIVERTISSEMENT
ADULTES |
REPORT RECOMMENDATION
That the Emergency and Protective Services Committee
recommend Council approve amendments to Licensing By-law No. 2002-189 to
establish harmonized regulations for licensing and regulating of Adult
Entertainment Stores, as attached in Document 1.
RECOMMANDATION DU RAPPORT
Que le
Comité des services de protection et d’urgence recommande au Conseil
d’approuver des modifications au Règlement no 189-2002 sur les
permis, de façon à harmoniser la réglementation concernant les magasins de
divertissement pour adultes, ainsi que le prévoit le Document 1.
Adult
Entertainment Stores includes the sale or rental of items (e.g., adult
magazines or videos) that are intended to appeal to erotic or sexual appetites
or inclinations. Such businesses are
regulated pursuant to the licensing by-laws of the former urban municipalities
of Ottawa, Gloucester, Nepean and Kanata.
This report
recommends the approval of regulations to license Adult
Entertainment Stores City-wide.
The proposed by-law provides
for the licensing ($500 annual license fee) and regulating of stores whose
principal business relates to adult entertainment while providing for the
regulation only, of stores that offer adult entertainment as an incidental part
of their main business (e.g., a mainstream video store with an adult video
section or a convenience store that offers a small selection of adult magazines
or films).
The proposed by-law is
focused on consumer protection by regulating the appropriate display and
advertising of adult materials to ensure that such materials are not viewable or
accessible by persons under eighteen (18) years of age.
Les magasins de divertissement pour adultes vendent ou louent des
articles (revues ou vidéos pour adultes, p. ex.) qui visent à éveiller les
instincts pour l’érotisme ou à aiguiser les appétits sexuels. Ces entreprises sont régies par les
règlements sur les permis des anciennes municipalités d’Ottawa, de Gloucester,
de Nepean et de Kanata.
Le présent rapport recommande l’adoption d’un règlement devant régir les
magasins de divertissement pour adultes sur l’ensemble du territoire de la
ville.
Le
règlement projeté renferme des dispositions concernant la délivrance de permis
(droits annuels de 500 $) et la réglementation des magasins dont le
divertissement pour adultes constitue la principale activité. Les magasins dont
le divertissement pour adultes ne constitue pas la principale activité seront
soumis à la réglementation, mais les propriétaires ne seront pas tenus de se
procurer un permis d’exploitation. C’est le cas notamment des clubs vidéos
grand public ayant une section réservée aux vidéos pour adultes et des
dépanneurs qui offrent un nombre limité de revues ou de films pour adultes.
Le
règlement projeté vise à assurer la protection des consommateurs en établissant
des règles d’étalage et de publicité pour ce qui concerne les produits destinés
aux adultes, afin de donner l’assurance que les personnes âgées de moins de
dix-huit (18) ans n’aient pas accès à ces produits et qu’ils ne soient pas
exposés à leur vue.
Licensing by-laws
regulating various types of adult material currently exist in the former
Ottawa, Gloucester, Nepean and Kanata.
The existing regulations limit access to the merchandise, mainly to
restrict access to adults, and prevent displays of merchandise to the general
public. Three of the former
municipalities limited the number of stores that could operate within the
former boundaries; 1 in each of Nepean and Kanata; 4 within Gloucester.
Where
a municipal regulation has been in place, it has worked well to ensure that
business owners do not allow persons under 18 from entering the premises and
that the requirements for compliance with the various regulations are adhered
to.
The Department recommends
extending the licensing requirement City-wide and harmonizing the associated
regulations and fees. A municipal
license, which can be suspended or revoked for violations of specific
regulations, provides additional incentive to a licensed business owner to
adhere to regulations.
The annual licensing fee
ranges in the licensing by-laws, from $300 in Gloucester, to $1000 in Ottawa
and Nepean, $2000 in Kanata. The
Department proposes that the license fee, which cannot exceed administrative
and enforcement costs, be established at $500. This fee is more reflective of
the current costs of conducting regular inspections and responding to
complaints. The Department estimates
that there are approximately 25 adult entertainment stores (principal business
that provide adult videos and magazines) operating within the City of
Ottawa.
Similar to the Adult
Entertainment Parlour By-laws of the former municipalities, some former cities
such as Nepean, Kanata and Gloucester limited the number of licensed
establishments for adult entertainment stores. This was not the case in former
Ottawa and did not pose any problems in terms of regulation. Zoning by-laws will essentially limit the
operation of these stores to ‘commercial’ areas and regulations within the
licensing by-laws are sufficient to address any concerns that could arise.
With respect to the
materials offered, the Ontario Film Review Board (OFRB) screens all adult sex
films involving explicit sexual activity between consenting adults in
accordance with guidelines dealing with areas such as consent, physical abuse,
coercion, humiliation, degradation, and so on. All adult sex films sold
or rented in retail establishments in Ontario must be screened and approved by
the OFRB. Once approved these products
must display a title-specific sticker.
Regulatory
Highlights
Principal business adult
entertainment stores ($500 license) must:
·
Maintain a list of all adult videos available on the premises
·
Post signs at every store entrance clearly indicating that persons
under the age of 18 are not permitted
·
Prohibit the provision (sale or rent) of adult materials to persons
under 18 years of age
·
Prohibit the display of explicit adult material, as defined by the
by-law, so that it is not viewable from outside the premises.
Incidental business adult
entertainment stores ($50 license) must:
·
Maintain a list of all adult videos available on the premises
·
Designate an area of the store as an adult video area in which adult
videos are displayed
·
Post signs at every entrance to the adult video area indicating that
persons under the age of 18 are not permitted.
·
Prohibit the provision (sale or rent) of adult materials to persons
under 18 years of age
·
Prohibit the display of explicit adult material, as defined by the
by-law, so that it is not viewable from outside the designated adult video
area.
Exemptions
Stores (e.g., convenience
stores) that offer a small selection of adult magazines displayed at a height
of at least 1.5 metres, or adult videos that are stored behind the counter
(i.e., available by listing only) are exempt from the licensing requirement.
There are no rural implications associated with this report.
CONSULTATION
An invitation to comment / public notice was published in the Ottawa dailies on June 24 and July 1, 2005, which in accordance with Bylaw 2002-522, allowed for one notice at least two weeks prior to the Committee where this repeal report is to be discussed. The notice invited interested persons to provide written or verbal comment, and/or to address the Emergency and Protective Service Committee of July 14, 2005, to support, object or provide comment. The meeting was rescheduled and an advertisement for the revised date of August 25 was published..
FINANCIAL IMPLICATIONS
Given increases in the
number of licensed premises coupled with a decrease in the license fee, it is
expected that there will be no net increase or decrease in revenues.
SUPPORTING DOCUMENTATION
Document 1 – Adult
Entertainment - Goods Store – Proposed By-law and Licensing Schedule
DISPOSITION
Legal Services to process
the appropriate by-law amendments to Council for enactment.
Department of Community and
Protective Services to administer and enforce the by-law.
Document 1
BY-LAW NO. 2005-
A by-law of the City of Ottawa to amend By-law No. 2002-189 respecting the licensing, regulating and governing of adult entertainment stores.
WHEREAS subsection
150(1) of the Municipal Act, 2001, S.O. 2001, Chapter 25, as amended,
authorizes a municipality to license, regulate and govern any business carried
out wholly or partly within the municipality;
AND WHEREAS subsection
150(2) provides that a municipality may only exercise its licensing powers for
the purposes of health and safety, nuisance control or consumer protection;
AND WHEREAS City Council
at its meeting of
determined that it is appropriate to license adult entertainment stores
for reasons of nuisance control and consumer protection;
THEREFORE the Council of
the City of Ottawa enacts as follows:
1. Section 1 of By-law No.
2002-189 entitled “A by-law of the City of Ottawa respecting the licensing,
regulating and governing of certain businesses”, as amended, is amended by
adding the following definitions thereto:
“adult
entertainment establishment” means any premises or part thereof where goods,
entertainment or services that are designed to appeal to erotic or sexual
appetites or inclinations are provided and includes adult entertainment
parlours and adult entertainment stores;
“adult
entertainment store” means,
(a) any premises or part thereof in which the principal business
carried on is the provision of either or both adult magazines or adult videos,
or
(b) any premises or part thereof in which the provision of adult
videos is incidental to the carrying on of a business not referred to in clause
(a).
“adult magazine” means any magazine the content of which is designed or held out as designed to appeal to erotic or sexual appetites or inclinations, through the pictorial, photographic or other graphic depiction of subject matter distinguished or characterized by the portrayal of one (1) or more persons involved or engaging in specified sexual activities or by an emphasis on the display of human specified body parts;
“adult video” means any video the content of which is designed or held out as designed to appeal to erotic or sexual appetites or inclinations, through the portrayal or depiction of specified body areas or specified sexual activities and, in the absence of evidence to the contrary, a video classified by the Ontario Film Review Board as “restricted” with the added information piece “adult sex film” shall be deemed to be an adult video, while a video without such classification and information piece shall be deemed not to be an adult video;
“specified body area” means any one or more of the following:
(a) in the case of a female person, her areolae; and
(b) in the case of all persons, the genitals and anus;
“specified sexual activity” means one or more of the following: actual or simulated sexual intercourse, masturbation, ejaculation, sodomy, bestiality, oral sexual intercourse, direct physical stimulation of unclothed genital organs or flagellation or toture in the context of a sexual relationship or activity;
“to provide” when
used in relation to an adult entertainment store includes to sell, offer to
sell, or display for sale by retail or to rent or display for rental, whether
or not the cost, fee or other consideration passes at the time of such rental
or sale, or is effected through the cost of membership, subscription, admission
or any other manner and “provided”, “providing” and “provision” have
corresponding meanings;
“video” includes
cinematographic or motion picture film, videotape, video disc and any other
medium from which may be produced visual images that may be viewed as moving
pictures;
“video store”
means any premises or part thereof in which videos are provided;
2. Subsection (3a) of Section
8 of the said By-law No. 2002-189 is amended by striking out the word “parlour”
where it occurs therein and substituting the word “establishment” therefor.
3. Section 9 of the said By-law No. 2002-189 is amended by adding the following subsection thereto:
( ) every owner or operator of an adult
entertainment store,
4. The said By-law No.2002 –
189 is amended by adding the following section immediately after Section 41:
41A. (1) ‘Despite subsection (1) of Section 41,
every owner or operator of an adult entertainment establishment who contravenes
this by-law and every director of a corporation that owns and operates an adult
entertainment establishment who concurs in the contravention by the corporation
is guilty of an offence and on conviction is liable to a fine of not more than
twenty-five thousand dollars ($25,000.00) or imprisonment for a term not exceeding
one year or both as provided for in the Municipal Act, 2001, S.O. 2001, Chapter
25, as amended.
(2) Despite
subsection (2) of Section 41, where a corporation that owns or operates an
adult entertainment establishment is convicted an offence under this by-law,
the maximum penalty that may be imposed on the corporation is fifty thousand
dollars ($50,000.00) and not as provided in subsection (1) in accordance with
the provisions of the Municipal Act, 2001.
5. Schedule “A” of the said By-law No. 2002-189 is amended by adding the following items thereto:
Column 1 Column
2 Column
3
Description of
License License Fee $ Expiry
Date
License A 500.00 December
31
License B 50.00 December
31
6. The said By-law No.
2002-189 is amended by adding thereto Schedule No. attached hereto entitled “Relating to Adult Entertainment
Stores”.
REPEAL PARTS OF
OLD GLOUCESTER BY-LAW NO. 170-2000
7. Section 47 of the said
By-law No. 2002-189 is amended by adding the following clauses thereto
immediately after clause ( ):
( ) by repealing the definitions
( ) by repealing the item where it occurs in Schedule “A”;
( ) by repealing Schedule “A-2” entitled
“ADULT VIDEO STORE”;
( ) by repealing the item where it occurs in Schedule “C”, Schedule
of Fees.
REPEAL – PARTS OF
OLD KANATA BY-LAW NO. 139-00
8. Section 49 of the said
By-law No. 2002-189is amended by adding the following clauses immediately after
clause ( ):
(a) by repealing the definitions where they occur in Section 1;
(b) by repealing item where it occurs in the Index to Licenses;
(c) by
repealing the item where it occurs in
Schedule “A” entitled “LICENCE FEES “;
( ) by
repealing Schedule 1A entitled “ADULT ENTERTAINMENT PARLOUR – GOODS CATEGORY”.
9. Section 50 of the said
By-law No. 2002-189 is amended by adding the following clauses immediately
after clause ( )
( ) by
repealing the definition “Adult Entertainment Parlour” where it occurs in
Section 1;
( ) by repealing Item where it occurs in the Index to Licenses;
( ) by
repealing the item where it occurs in
Schedule “A” entitled “FEES FOR LICENCES”;
( ) by
repealing Schedule 1 entitled “ADULT ENTERTAINMENT PARLOUR”.
REPEAL – PARTS OF OLD OTTAWA
BY-LAW NUMBER L6-2000
10. Section 51 of the said By-aw No. 2002-189 is amended by adding the following clauses immediately after clause ( ):
( ) by repealing paragraphs of
Section 1;
( ) by repealing paragraphs of Section 2;
( ) by striking out the item “Adult
Entertainment Store” in Schedule No. 1;
( ) by repealing Schedule No. 29 “Relating
to Adult Entertainment Stores”.
11. Subsection (1) of Section 54
of the said By-law No. 2002-189 is amended by adding the following clause
thereto immediately after clause ( ):
( ) the
license period for adult entertainment store license issued pursuant to By-law
Number L6-2000 of the old Corporation of the City of Ottawa is extended and the
licenses remain in full force and effect until December 31, 2005.
12. This by-law includes the
Schedule annexed hereto and the Schedule is herby declared to form part of this
by-law.
13. This by-law shall come into
effect on November 30, 2005.
ENACTED AND PASSED
this day of ,
2005
CITY CLERK MAYOR
SCHEDULE NO.
Relating to Adult
Entertainment Stores
LICENSES REQUIRED
1. The following types of
licenses may be issued:
(a) a
License “A” to the owner or operator of an adult entertainment store in which
the principal business carried on is the provision of either or both adult
magazines or adult videos, or
(b) a
License “B” to the owner or operator of an adult entertainment store in which
the provision of either or both adult videos or adult magazines is incidental
to the carrying on of a business not referred to in paragraph (a).
CONDITIONS FOR ISSUANCE OF A
LICENSE
2. No applicant for an adult entertainment store license shall be issued a license unless:
(a) the applicant is at least eighteen (18)
years of age, and
(b) the
premises comply with the zoning, building and property standards requirements
of the City.
3. A separate license shall be obtained in respect
of each adult entertainment store.
REGULATIONS APPLICABLE TO
ADULT ENTERTAINMENT STORES – LICENSE “A”
4. Every holder of a License “A” shall:
(a) maintain
on the premises, during all business hours, a current list of all adult videos
available on the premises, and make such list available for inspection when so
requested by the Chief License Inspector or the Chief of Police,
(b) post
and keep posted at every entrance to the adult entertainment store signs
sufficient to indicate clearly to any person approaching or entering the store,
and to every person in the store, that no person under the age of eighteen (18)
years is permitted to enter or remain in such store or any part thereof,
(c) ensure
that no person under the age of eighteen (18) years is employed to working the
adult entertainment store,
(d) ensure
that no person under the age of eighteen (18) years is permitted to enter or
remain in the adult entertainment store,
(e) ensure
that no adult magazine or adult video is provided to any person under the age
of eighteen (18) years,
(f) ensure
that the exterior signs or advertisements for the adult entertainment store do
not use text or pictorial representations of any specified body area or
specified sexual activity
(g) ensure
that no adult magazine, adult video, adult video container or any other printed
material or visual image which reveals a specified body area or a specified
sexual activity is displayed so that it may be viewed by any member of the
public from outside the premises, and
(h) ensure
that no adult videos are played or previewed for public view within the adult
entertainment store.
REGULATIONS APPLICABLE TO
ADULT ENTERTAINMENT STORES – LICENSE “B”
5. Every holder of a License “B” shall:
(a) maintain
on the premises, during all business hours, a current list of all adult videos
available on the premises, and make such list available for inspection when so
requested by the Chief License Inspector or the Chief of Police,
(b) designate
an area of the store as an adult video area, being an identifiable portion of
the premises, in which adult videos are provided or displayed,
(c) post
and keep posted at every approach and entrance to the designated adult video
area, signs sufficient to indicate clearly to any person approaching or
entering the store, and to every person in the store, that no person under the
age of eighteen (18) years is permitted to enter or remain in the adult video
area,
(d) ensure
that no adult magazine, adult video, adult video container or any other printed
material or visual image which reveals a specified body area or a specified
sexual activity, is displayed outside of the designated adult video area,
(e) ensure
that no adult magazine, adult video, adult video container or any other printed
material or visual image which reveals a specified body area or a specified
sexual activity, is displayed in such a way that it may be viewed from outside
of the designated adult video area,
(f) ensure
that no person under the age of eighteen (18) years is permitted to enter or
remain in the designated adult video area,
(g) ensure
that no adult video is provided to any person under the age of eighteen (18)
years, and
(h) ensure
that no adult videos are played or previewed for public view within the adult
entertainment store.
EXCEPTION
6. The provisions of Section 5 do not apply to an adult entertainment store where the provision of either or both adult magazines and adult videos is incidental to the carrying on of the business provided that the owner or operator of the adult entertainment store:
(a) stores all the adult videos behind the counter or other area not accessible to customers of the store,
(b) ensures that no
adult video, adult video container or any other printed material or visual
image which reveals a specified body area or a specified sexual activity, is
displayed where it can be seen by customers of the store,
(c) ensures that no
adult magazine is displayed at a height of less than 1.5 metres,
(d) maintains on the
premises, during all business hours, a current list of all adult videos
available on the premises, and make such list available for inspection when so
requested by the Chief License Inspector or the Chief of Police,
(e) makes the
listing, referred to in paragraph (c) hereof, available to any person who is
eighteen (18) years of age or older upon request,
(f) ensure that no adult
video is provided to any person under the age of eighteen (18) years, and
(g) ensure that no
adult videos are played or previewed for public view within the adult
entertainment store
By-law harmonization – Business licensing – adult ENtertainment stores
HARMONISATION DES RÈGLEMENTS
MUNICIPAUX - PERMIS D’ENTREPRISE – MAGASINS DE VENTES DES VIDEOS POUR ADULTES
ACS2005-cPS-BYL-0031
Ms. Jones asked Committee to consider a
housekeeping amended to this item, circulated to members at the start of the
meeting.
Moved by Councillor M. McRae
CARRIED
The Committee then voted on the report as
amended.
That
the Emergency and Protective Services Committee recommend Council approve
amendments to Licensing By-law No. 2002-189 to establish harmonized regulations
for licensing and regulating of Adult Entertainment Stores, as attached in
Document 1 and as amended by the following:
CARRIED
as amended