Bill Text: MI HB5972 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Occupations; business licensing and registration; licensure of adult entertainment businesses; provide for. Amends secs. 212 & 303a of 1980 PA 299 (MCL 339.212 & 339.303a) & adds art. 14B.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-05-10 - Bill Electronically Reproduced 05/09/2018 [HB5972 Detail]

Download: Michigan-2017-HB5972-Introduced.html

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HOUSE BILL No. 5972

 

 

May 9, 2018, Introduced by Reps. Love and Garrett and referred to the Committee on Regulatory Reform.

 

      A bill to amend 1980 PA 299, entitled

 

"Occupational code,"

 

by amending sections 212 and 303a (MCL 339.212 and 339.303a),

 

section 303a as amended by 2014 PA 265, and by adding article 14B.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

 1        Sec. 212. (1) The department shall prepare and publish an

 

 2  annual report describing the activities of the department and each

 

 3  agency created pursuant to under this act. The department shall

 

 4  file the annual report shall be filed with the governor and the

 

 5  legislature.

 

 6        (2) The report shall include the following information about

 

 7  the department's administration and enforcement of article 14B:

 

 8        (a) The number of adult entertainment businesses, as defined

 

 9  in section 1471, that are currently licensed in this state.

 

 1        (b) The amount of fees collected and fines paid under article

 

 2  14B in the previous year.

 

 3        (c) The number of violations of article 14B investigated in

 

 4  the previous year and the outcome of each investigation, including

 

 5  any penalties assessed under article 6.

 

 6        Sec. 303a. The term of office of a member of a board appointed

 

 7  under this article shall commence on 1 of the following dates, as

 

 8  applicable:

 

 

9	Accountancy	July 1
10	Adult entertainment businesses	July 1
11	Architects	April 1
12	Barbers	October 1
13	Collection agencies	July 1
14	Cosmetology	January 1
15	Employment agencies	October 1
16	Hearing aid dealers	October 1
17	Land surveyors	April 1
18	Landscape architects	July 1
19	Mortuary science	July 1
20	Professional engineers	April 1
21	Real estate appraisers	July 1
22	Real estate brokers and salespersons	July 1
23	Residential builders	April 1

 

 

24                           ARTICLE 14B

 

25                  ADULT ENTERTAINMENT BUSINESSES

 

26        Sec. 1471. As used in this article:

 

27        (a) "Adult arcade" means a commercial establishment in which,

 1  for any form of consideration, 1 or more still or motion picture

 

 2  projectors, slide projectors, computer-generated or enhanced

 

 3  pornography, panorama or peep show, or similar machines, or other

 

 4  image-producing machines, for personal viewing, are used to show

 

 5  films, motion pictures, videocassettes, slides, or other

 

 6  photographic reproductions that provide material for individual

 

 7  viewing by patrons on the premises of the establishment that are

 

 8  characterized by an emphasis on the depiction, description, or

 

 9  simulation of specified anatomical areas or specified sexual

 

10  activities.

 

11        (b) "Adult entertainment" means any dance, amusement, show,

 

12  display, merchandise, material, exhibition, pantomime, modeling, or

 

13  other similar performance of any type for the use or benefit of a

 

14  member of the public or advertised for the use or benefit of a

 

15  member of the public that is characterized by an emphasis on the

 

16  depiction, description, or simulation of specified anatomical areas

 

17  or the exhibition of specified sexual activities, or in the case of

 

18  live adult entertainment performances, that emphasizes and seeks to

 

19  arouse or excite a patron's sexual desires.

 

20        (c) "Adult entertainment business" means any establishment

 

21  that provides adult entertainment, including, but not limited to,

 

22  an adult arcade, adult motion picture theater, adult retail

 

23  establishment, or exotic dance studio.

 

24        (d) "Adult entertainment material" means any books, magazines,

 

25  cards, pictures, periodicals, or other printed matter, or

 

26  photographs, films, motion pictures, videotapes, slides, or other

 

27  photographic reproductions or visual representations, or CDs, DVDs,

 1  disks, electronic media, or other similar media, or instruments,

 

 2  devices, equipment, paraphernalia, toys, novelties, games,

 

 3  clothing, or other merchandise or material, that are characterized

 

 4  by an emphasis on the depiction, description, or simulation of

 

 5  specified anatomical areas or specified sexual activities.

 

 6        (e) "Adult motion picture theater" means a commercial

 

 7  establishment in which films, motion pictures, videocassettes,

 

 8  slides, or similar photographic reproductions characterized by an

 

 9  emphasis on the depiction, description, or simulation of specified

 

10  anatomical areas or specified sexual activities are regularly shown

 

11  for any form of consideration.

 

12        (f) "Adult retail establishment" means any bookstore, adult

 

13  novelty store, adult video store, or other similar commercial

 

14  establishment, business, service, or portion of an establishment,

 

15  business, or service, that for money or any other form of

 

16  consideration provides as a significant or substantial portion of

 

17  its stock-in-trade the sale, exchange, rental, loan, trade, or

 

18  transfer of adult entertainment material, or providing adult

 

19  entertainment material for viewing or use off the premises of the

 

20  establishment. All of the following apply for purposes of

 

21  determining whether a business is an adult retail establishment:

 

22        (i) There is a rebuttable presumption that 30% or more of a

 

23  business's stock-in-trade in adult retail material, based on either

 

24  the wholesale or retail dollar value or the number of titles of

 

25  that material, is significant or substantial.

 

26        (ii) In determining whether or not the presumption described

 

27  in subparagraph (i) is rebutted, the department may consider 1 or

 1  more of the following factors, which are not conclusive:

 

 2        (A) Whether minors are prohibited from access to the premises

 

 3  of the establishment due to the adult entertainment nature of the

 

 4  inventory.

 

 5        (B) Whether the establishment is advertised, marketed, or held

 

 6  out to be an adult merchandising facility.

 

 7        (C) Whether adult entertainment material is an establishment's

 

 8  primary or 1 of its principal business purposes.

 

 9        (D) Whether 30% or more of an establishment's revenue is

 

10  derived from adult entertainment material.

 

11        (iii) An establishment may have other principal business

 

12  purposes that do not involve the offering for sale or rental of

 

13  adult entertainment materials and still be categorized as an adult

 

14  retail establishment. An establishment that has other principal

 

15  business purposes described in this subparagraph does not exempt

 

16  the establishment from being categorized as an adult retail

 

17  establishment if at least 1 of its principal business purposes is

 

18  offering for sale or rental, for some form of consideration, adult

 

19  entertainment materials.

 

20        (iv) The department has full discretion to give appropriate

 

21  weight to the factors described in subparagraphs (i) to (iii) in

 

22  determining whether a business is an adult retail establishment,

 

23  and any other factors the department considers appropriate

 

24  depending on the particular facts and circumstances of an

 

25  application for a license.

 

26        (g) "Employee" means an individual, including, but not limited

 

27  to, a manager, entertainer, or independent contractor, who works in

 1  or at or renders any services directly related to the operation of

 

 2  any adult entertainment business, whether or not he or she is paid

 

 3  compensation by the operator of the adult entertainment business.

 

 4        (h) "Entertainer" means an individual who provides live adult

 

 5  entertainment in an adult entertainment business, whether or not he

 

 6  or she is an employee of the operator and whether or not a fee is

 

 7  charged or accepted for that entertainment.

 

 8        (i) "Exotic dance studio" means a nightclub, bar, restaurant,

 

 9  or similar commercial establishment, or any premises or facility to

 

10  which any member of the public is invited or admitted and in which

 

11  an entertainer provides to any member of the public a live

 

12  performance that is characterized by an emphasis on the depiction,

 

13  description, or simulation of specified anatomical areas or

 

14  specified sexual activities, or that emphasizes and seeks to arouse

 

15  or excite a patron's sexual desires. The term includes an

 

16  establishment that is commonly known as a "topless bar", "strip

 

17  club", or "adult cabaret".

 

18        (j) "Licensee" means a person in whose name a license to

 

19  operate an adult entertainment business is issued. The term

 

20  includes each principal owner.

 

21        (k) "Manager" means an individual who is appointed by an

 

22  operator of an adult entertainment business who manages, directs,

 

23  administers, or is in charge of the affairs or the conduct or

 

24  operation of an adult entertainment business. The term includes an

 

25  assistant manager.

 

26        (l) "Member of the public" includes any patron of an adult

 

27  entertainment business.

 1        (m) "Operator" means a person that operates or is a principal

 

 2  owner of an adult entertainment business.

 

 3        (n) "Panorama or peep show" means a device that exhibits or

 

 4  displays a picture or view by film or video, or by any other means,

 

 5  when a coil is inserted or the device is activated by other means.

 

 6        (o) "Peace officer" means the attorney general, a deputy or

 

 7  assistant to the attorney general, or a law enforcement officer as

 

 8  that term is defined in section 2 of the Michigan commission on law

 

 9  enforcement standards act, 1965 PA 203, MCL 28.602.

 

10        (p) "Premises" means the real property on which an adult

 

11  entertainment business is located, and all appurtenances to and

 

12  buildings on that real property, including, but not limited to,

 

13  grounds, private walkways, parking lots, and parking garages

 

14  adjacent to the business, that are under the ownership, control, or

 

15  supervision of the operator of the adult entertainment business.

 

16        (q) "Principal owner" means a person who owns 10% or more of

 

17  the outstanding equity interests of a licensee, including, but not

 

18  limited to, stock in a corporation, partnership interest in a

 

19  partnership, or membership interest in a limited liability company.

 

20        (r) "Specified anatomical areas" means any of the following:

 

21        (i) Less than completely and opaquely covered human genitals,

 

22  pubic region, buttocks, anus, or female breast below a point

 

23  immediately above the top of the areolae.

 

24        (ii) Human male genitals in a discernibly turgid state, even

 

25  if completely and opaquely covered.

 

26        (s) "Specified sexual activities" means any of the following:

 

27        (i) The caressing, touching, fondling, or other intentional or

 1  erotic touching of male genitals, female genitals, pubic region,

 

 2  buttocks, anus, or female breasts of oneself or of 1 individual by

 

 3  another.

 

 4        (ii) Sex acts, normal or perverted, actual or simulated,

 

 5  including masturbation, intercourse, oral copulation, flagellation,

 

 6  sodomy, bestiality, or any sexual acts that are prohibited by law.

 

 7        (iii) Human genitals in a state of sexual stimulation,

 

 8  arousal, or tumescence, or a visual state of sexual stimulation,

 

 9  arousal, or tumescence, even if completely and opaquely covered.

 

10        (iv) Excretory functions as part of or in connection with any

 

11  of the activities set forth in subparagraphs (i) to (iii).

 

12        Sec. 1472. The adult entertainment business board is created.

 

13  The board shall consist of 9 individuals, as follows:

 

14        (a) Six individuals who are principal owners or managers of

 

15  adult entertainment businesses.

 

16        (b) Three individuals representing the general public.

 

17        Sec. 1473. (1) Beginning 90 days after the effective date of

 

18  the amendatory act that added this section, a person shall not

 

19  engage in, carry on, or participate in the operation of an adult

 

20  entertainment business unless the person is licensed by the

 

21  department under this article.

 

22        (2) Notwithstanding section 601(3), a manager of an adult

 

23  entertainment business, and each of the following individuals, as

 

24  applicable, engaging in, carrying on, or participating in the

 

25  operation of an adult entertainment business in violation of

 

26  subsection (1), is guilty of a misdemeanor punishable by a fine of

 

27  not more than $10,000.00 or imprisonment for not more than 6

 1  months, or both:

 

 2        (a) If the operator is a corporation, a principal owner, a

 

 3  director, or an officer.

 

 4        (b) If the operator is a partnership, a general partner, or a

 

 5  principal owner.

 

 6        (c) If the operator is a limited liability company, an

 

 7  individual who is a principal owner or manager.

 

 8        (3) A certificate by the department that a diligent search of

 

 9  the department's records kept in conformity with this article has

 

10  failed to disclose the existence of a valid license for an adult

 

11  entertainment business is prima facie evidence of a violation of

 

12  subsection (1).

 

13        Sec. 1474. (1) A license issued under this article is not

 

14  transferable.

 

15        (2) In addition to any penalties assessed under article 6, a

 

16  person that intentionally uses or permits the use, or attempts to

 

17  use or permit the use, of a license issued under this article by or

 

18  on behalf of a person other than the licensee is guilty of a

 

19  misdemeanor punishable by a fine of not more than $500.00 or

 

20  imprisonment for not more than 6 months, or both.

 

21        Sec. 1475. (1) A license issued under this article shall

 

22  contain the original or facsimile signature of the director, shall

 

23  bear in bold letters the date of issuance and termination, and

 

24  shall state the name and address of the licensee.

 

25        (2) A license for the operation of an adult entertainment

 

26  business shall describe the nature of the business or enterprise

 

27  and specify the location of the premises at which the business is

 1  authorized. If the licensee is a corporation, the license shall

 

 2  state the name and address of the corporation's resident agent in

 

 3  this state and the address of its registered office.

 

 4        Sec. 1476. (1) The department shall maintain an alphabetized

 

 5  or computerized database containing a picture and the full name,

 

 6  nicknames or aliases, residential address, business address, social

 

 7  security number, and driver license number of, and the name and

 

 8  address of all banks in or out of this state where accounts are

 

 9  maintained by, every adult entertainment business applicant and

 

10  licensee. An applicant for a license shall provide a picture and

 

11  the same information for any other person whose signature appears

 

12  on an application or on any supporting documents submitted with an

 

13  application for a license under this article. Each database shall

 

14  indicate the eligibility of an applicant as a licensee under this

 

15  article and whether the signature of an individual on an

 

16  application for a license precludes the issuance of a license based

 

17  on that signature.

 

18        (2) In considering an application for a license, the

 

19  department shall submit names of applicants and those appearing in

 

20  applications to the Federal Bureau of Investigation and the United

 

21  States Department of Justice for the purpose of a record check.

 

22        (3) Any records or information obtained by or disclosed to the

 

23  department in connection with an application for license or license

 

24  renewal under this article shall be confidential records of the

 

25  department and shall not be available for public inspection or

 

26  copying or divulged to any person except as provided in this

 

27  subsection. The department may disclose records or information as

 1  follows:

 

 2        (a) To law enforcement officials.

 

 3        (b) In connection with an action brought under this act.

 

 4        (c) Upon order of a court.

 

 5        Sec. 1477. (1) All of the following apply to an adult

 

 6  entertainment business:

 

 7        (a) A license issued under this article shall authorize the

 

 8  licensee to engage in or carry on the business of operating an

 

 9  adult entertainment business only in the premises specified in the

 

10  license.

 

11        (b) An applicant or licensee seeking a license or renewal must

 

12  document in its application that the location or proposed location

 

13  of the premises is in compliance with all applicable laws and

 

14  ordinances.

 

15        (c) If a licensee changes the location of the licensee's

 

16  premises during the period for which the license was issued, the

 

17  license is revoked and the licensee must submit a new license

 

18  application in accordance with this article for a new license to

 

19  conduct business at the new premises.

 

20        (2) In addition to any penalties assessed under article 6, a

 

21  licensee, manager of an adult entertainment business, and each of

 

22  the following persons, as applicable, engaging in, carrying on, or

 

23  participating in the operation of the business at a place other

 

24  than that authorized by the license is guilty of a misdemeanor

 

25  punishable by a fine of not more than $500.00 or imprisonment for

 

26  not more than 6 months, or both:

 

27        (a) If the person is a corporation, a principal owner,

 1  director, or officer.

 

 2        (b) If the person is a partnership, a general partner or

 

 3  principal owner.

 

 4        (c) If the person is a limited liability company, a principal

 

 5  owner or manager.

 

 6        Sec. 1478. (1) A person licensed to operate an adult

 

 7  entertainment business under this article shall display the license

 

 8  in a conspicuous manner on the premises for which the license is

 

 9  issued.

 

10        (2) In addition to any penalties assessed under article 6, a

 

11  violation of this section is a misdemeanor punishable by a fine of

 

12  not more than $1,000.00.

 

13        Sec. 1479. (1) The department shall not issue a license for

 

14  the operation of an adult entertainment business unless the

 

15  applicant has filed with the department a completed application

 

16  that complies with this article.

 

17        (2) An application for a license for the operation of an adult

 

18  entertainment business shall state the full name of the applicant,

 

19  including nicknames or aliases, residential address, place of

 

20  employment including address and telephone number, social security

 

21  number, date of birth, driver license number, a photograph of the

 

22  applicant taken within 30 days of the application, federal

 

23  employer's identification number, and an address of the premises

 

24  for which the application for license is made.

 

25        (3) If the applicant is a corporation, the application shall

 

26  include all of the following:

 

27        (a) A copy of the articles or certificate of incorporation

 1  certified by the department for a domestic corporation or the

 

 2  appropriate official of the state of incorporation for a

 

 3  corporation formed in another state.

 

 4        (b) If the applicant is a corporation formed in another state,

 

 5  a certificate of authority to transact business from the

 

 6  department.

 

 7        (c) A certificate containing the full name, including

 

 8  nicknames or aliases, place of employment including address and

 

 9  telephone number, social security number, date of birth, driver

 

10  license number, and a photograph taken within 30 days of

 

11  application of each director and officer and of the individual who

 

12  is the principal owner of the applicant. Each director and officer

 

13  and the individual who is the principal owner of the applicant must

 

14  sign the certificate, and each signature must be an original

 

15  signature separately witnessed and acknowledged by a notary public.

 

16        (d) The names and addresses of all holders of stock of the

 

17  applicant as of a date within 30 days before the date of

 

18  application, certified as true and correct by an authorized

 

19  director or officer of the corporation.

 

20        (4) If the applicant is a limited liability company, the

 

21  application shall include all of the following:

 

22        (a) A copy of the articles of organization certified by the

 

23  department for a domestic corporation or the appropriate official

 

24  of the state of formation for a limited liability company formed in

 

25  another state.

 

26        (b) If the applicant is a limited liability company formed in

 

27  another state, a certificate of authority to transact business from

 1  the department.

 

 2        (c) A certificate containing the full name, including

 

 3  nicknames or aliases, place of employment including address and

 

 4  telephone number, social security number, date of birth, driver

 

 5  license number, and a photograph taken within 30 days of

 

 6  application of each individual who is a manager or the principal

 

 7  owner of the applicant. Each individual who is a manager or

 

 8  principal owner of the applicant must sign the certificate, and

 

 9  each signature must be an original signature separately witnessed

 

10  and acknowledged by a notary public.

 

11        (d) The names and addresses of all holders of membership

 

12  interests in the applicant as of a date within 30 days before the

 

13  date of application, certified as true and correct by a manager or

 

14  member of the applicant.

 

15        (5) If the applicant is a partnership or other unincorporated

 

16  association, the application shall include a certificate containing

 

17  the full name, including nicknames or aliases, place of employment

 

18  including address and telephone number, social security number,

 

19  date of birth, driver license number, and a photograph taken within

 

20  30 days of application of each individual who is a partner or

 

21  member. Each individual who is a partner or member of the applicant

 

22  must sign the certificate and each signature must be an original

 

23  signature separately witnessed and acknowledged by a notary public.

 

24        (6) The department shall not accept an application or issue a

 

25  license to operate an adult entertainment business at a location if

 

26  the department has denied an application to operate an adult

 

27  entertainment business at that location within the previous 6

 1  months.

 

 2        Sec. 1480. An applicant for any license under this article, or

 

 3  a person holding a license for the operation of an adult

 

 4  entertainment business is subject to the penalties of section 602

 

 5  for 1 or more of the following:

 

 6        (a) An intentional misrepresentation or omission of any

 

 7  material fact required to be filed pursuant to this article.

 

 8        (b) A transfer of a license in violation of section 1474(1) or

 

 9  a change of location in violation of section 1477.

 

10        (c) A failure to comply with section 1483.

 

11        (d) A conviction of the applicant or licensee for a crime,

 

12  including conspiracy, or violation of a local ordinance, involving

 

13  lewdness, prostitution, promoting prostitution, sexual assault or

 

14  assault with intent to commit criminal sexual conduct, sexual

 

15  misconduct, indecent exposure, incest, rape or criminal sexual

 

16  conduct, or sodomy, or registration of an applicant or licensee as

 

17  a sex offender, in this state or any other state or jurisdiction.

 

18        (e) A conviction of a partner, director, officer, principal

 

19  owner, manager, or employee of the licensee for a crime, including

 

20  conspiracy, or violation of a local ordinance, involving lewdness,

 

21  prostitution, promoting prostitution, sexual assault or assault

 

22  with intent to commit criminal sexual conduct, sexual misconduct,

 

23  indecent exposure, incest, rape or criminal sexual conduct, or

 

24  sodomy, occurring on the licensed premises, or his or her

 

25  registration as a sex offender in this state or any other state or

 

26  jurisdiction.

 

27        (f) A conviction of a partner, director, officer, principal

 1  owner, manager, or employee of the licensee for a crime, including

 

 2  conspiracy, or violation of a local ordinance, involving lewdness,

 

 3  prostitution, promoting prostitution, sexual assault or assault

 

 4  with intent to commit criminal sexual conduct, sexual misconduct,

 

 5  indecent exposure, incest, rape or criminal sexual conduct, or

 

 6  sodomy, or his or her registration as a sex offender, in this state

 

 7  or any other state or jurisdiction, not occurring on licensed

 

 8  premises, if the partner, director, officer, principal owner,

 

 9  manager, or employee, at the time of the conduct constituting the

 

10  offense, was off the premises at the request or direction or

 

11  pursuant to the authority of the licensee for the purpose of

 

12  furthering the business of the licensee.

 

13        Sec. 1481. A person that files any information under this

 

14  article shall not intentionally misrepresent or omit any material

 

15  fact required to be filed under this article. In addition to any

 

16  penalties assessed under article 6, a person that violates this

 

17  section is guilty of a misdemeanor punishable by a fine of not more

 

18  than $1,000.00 or imprisonment for not more than 30 days, or both.

 

19  For the purpose of this section, a fact is "material" if it could

 

20  have affected the department's decision to issue a license or deny

 

21  an application for license.

 

22        Sec. 1483. (1) The operator or an adult entertainment business

 

23  shall notify the department in writing within 10 days if any

 

24  information it has provided in its application has changed. If the

 

25  change is to disclose the identity of an individual about whom the

 

26  adult entertainment business is required to provide information in

 

27  its application under section 1479, the adult entertainment

 1  business shall include in the notice the full name, including

 

 2  nicknames or aliases, residential address, place of employment

 

 3  including address and telephone number, date of birth, social

 

 4  security number, driver license number, and a photograph taken

 

 5  within 30 days of application of the person.

 

 6        (2) In addition to any penalties assessed under article 6, a

 

 7  violation of this section is a misdemeanor punishable by a fine in

 

 8  the amount of $1,000.00.

 

 9        Sec. 1484. (1) This article applies to all businesses and

 

10  enterprises subject to this article whether in existence before,

 

11  on, or after the effective date of this article.

 

12        (2) Issuance of a license under this article is not a defense

 

13  to a civil or criminal action other than an action for a licensing

 

14  violation under this article.

 

15        Sec. 1487. (1) An owner, manager, operator, or employee of an

 

16  adult entertainment business shall not knowingly admit or allow an

 

17  individual who is under the age of 18 years to be in or on the

 

18  premises of the adult entertainment business.

 

19        (2) An owner, operator, manager, or employee of an adult

 

20  entertainment business shall not knowingly allow a patron of the

 

21  adult entertainment business to be unclothed, or to wear any

 

22  attire, costume, or clothing that results in the patron being in a

 

23  state of nudity.

 

24        (3) An owner, operator, manager, or employee of the adult

 

25  entertainment business shall not knowingly allow a patron to engage

 

26  in any specified sexual activity in or on the premises.

 

27        (4) In addition to any penalties assessed under article 6, a

 1  violation of this section is a misdemeanor punishable by a fine of

 

 2  $1,000.00 for the first offense or $5,000.00 for a subsequent

 

 3  offense.

 

 4        (5) It is an affirmative defense to a prosecution under this

 

 5  section for a violation of subsection (1) that the individual under

 

 6  the age of 18 years presented identification to the accused if the

 

 7  identification contains a photograph of the individual and contains

 

 8  other information that would lead a reasonable person to believe

 

 9  the individual was 18 years of age or older.

 

10        Enacting section 1. This amendatory act takes effect 90 days

 

11  after the date it is enacted into law.