HB3983 99TH GENERAL ASSEMBLY

LRB099 11142 AWJ 31611 b

99TH GENERAL ASSEMBLY
State of Illinois
2015 and 2016
HB3983

Introduced , by Rep. Margo McDermed

SYNOPSIS AS INTRODUCED:

55 ILCS 5/5-1097.5
55 ILCS 5/5-1097.7
65 ILCS 5/11-5-1.5

Amends the Counties Code. Provides for a public policy recital concerning the reasons for regulating adult entertainment facilities. Provides that provisions requiring a one-mile separation between an adult entertainment facility and other specific land uses shall not be enforced if enforcement would fail to allow adult entertainment facilities reasonable alternative avenues of communications. Modifies the definition of "adult entertainment facility." Adds severability clauses. Limits home rule powers. Makes similar changes to the Illinois Municipal Code and provides that adult entertainment facility ordinances may be enforced in the circuit court by the State's Attorney, Attorney General, and persons authorized to bring an action to enjoin zoning violations. Effective immediately.

HOME RULE NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning local government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Counties Code is amended by changing Sections 5-1097.5 and 5-1097.7 as follows:

(55 ILCS 5/5-1097.5)

Sec. 5-1097.5. Adult entertainment facility.

(a) It is the intent of the General Assembly through this Section to control the negative secondary effects associated with the operation of adult entertainment facilities, including, but not limited to, negative impacts on surrounding properties, personal and property crimes, and vice activities, and to restrict the proximity of adult entertainment facilities near places where children and families are actively present, so as to promote the health, safety, and welfare of the citizens of Illinois.

This Section is not intended to deny access by adults to any expression that may be protected by the First Amendment of the United States Constitution or by the Illinois Constitution.

(b) It is prohibited within an unincorporated area of a county to locate an adult entertainment facility within 3,000 feet of the property boundaries of any school, day care center, cemetery, public park, forest preserve, public housing, place of religious worship, or residence, except that in a county with a population of more than 800,000 and less than 2,000,000 inhabitants, it is prohibited to locate, construct, or operate a new adult entertainment facility within one mile of the property boundaries of any school, day care center, cemetery, public park, forest preserve, public housing, or place of religious worship located anywhere within that county. Notwithstanding any other requirements of this Section, it is also prohibited to locate, construct, or operate a new adult entertainment facility within one mile of the property boundaries of any school, day care center, cemetery, public park, forest preserve, public housing, or place of religious worship located in that area of Cook County outside of the City of Chicago. The provisions requiring a one-mile separation shall not be enforced if enforcement would fail to allow adult entertainment facilities reasonable alternative avenues of communication.

(c) For the purposes of this Section, "adult entertainment facility" means (i) a movie theater, lounge, nightclub, bar, juice bar, or similar commercial establishment that regularly features a striptease club or pornographic movie theatre whose business is the commercial sale, dissemination, or distribution of sexually explicit material, shows, or other exhibitions characterized by an emphasis on the display of specified anatomical areas or specified sexual activities, or (ii) a an adult bookstore or adult video store whose primary business is the commercial sale, dissemination, or distribution of sexually explicit material, shows, or other exhibitions characterized by an emphasis on the display of specified anatomical areas, specified sexual activities, or devices, other than devices designed to prevent pregnancy or sexually transmitted diseases, that are designed for use during specified sexual activities. "Unincorporated area of a county" means any area not within the boundaries of a municipality and "specified anatomical areas" and "specified sexual activities" shall have the meanings given to those terms in Section 5-1097.7 of this Code.

(d) The State's Attorney of the county where the adult entertainment facility is located or the Attorney General may institute a civil action for an injunction to restrain violations of this Section. Those persons and entities authorized to bring an action to enjoin a zoning violation may bring an action to enjoin a violation of this Section. In any enforcement that proceeding, the court shall determine whether a violation has been committed and shall enter such orders as it considers necessary to remove the effect of any violation and to prevent the violation from continuing or from being renewed in the future.

(e) A home rule unit may not enact an ordinance, rule, or otherwise allow an adult entertainment facility to operate in a manner inconsistent with this Section, except that a home rule unit may lessen the required distance between an adult entertainment facility and any other land use listed in subsection (b) of this Section to not less than 250 feet. This Section is a limitation under subsection (g) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

(f) The provisions of this Section are severable under Section 1.31 of the Statute on Statutes.

(Source: P.A. 94-496, eff. 1-1-06; 95-214, eff. 8-16-07.)

(55 ILCS 5/5-1097.7)

Sec. 5-1097.7. Local ordinances to regulate adult entertainment facilities and obscenity.

(a) Definitions. In this Act:

"Specified anatomical area" means human genitals or pubic region, buttocks, anus, or the female breast below a point immediately above the top the areola that is less than completely or opaquely covered, or human male genitals in a discernibly turgid state even if completely or opaquely covered.

"Specified sexual activities" means (i) human genitals in a state of sexual stimulation or excitement; (ii) acts of human masturbation, sexual intercourse, fellatio, or sodomy; (iii) fondling, kissing, or erotic touching of specified anatomical areas; (iv) flagellation or torture in the context of a sexual relationship; (v) masochism, erotic or sexually oriented torture, beating, or the infliction of pain; (vi) erotic touching, fondling, or other such contact with an animal by a human being; or (vii) human excretion, urination, menstruation, or vaginal or anal irrigation as part of or in connection with any of the activities set forth in items (i) through (vi).

(b) Ordinance to regulate adult entertainment facilities. A county may adopt by ordinance reasonable regulations concerning the operation of any business: (i) defined as an adult entertainment facility in Section 5-1097.5 of this Act or (ii) that offers or provides activities by employees, agents, or contractors of the business that involve exposure of specified anatomical areas or performance of specified sexual activities in view of any patron, client, or customer of the business. A county ordinance may also prohibit the sale, dissemination, display, exhibition, or distribution of obscene materials or conduct.

(c) A county adopting an ordinance to regulate adult entertainment facilities may authorize the State's Attorney to institute a civil action to restrain violations of that ordinance. In that proceeding, the court shall enter such orders as it considers necessary to abate the violation and to prevent the violation from continuing or from being renewed in the future. In addition to any injunctive relief granted by the court, an ordinance may further authorize the court to assess fines of up to $1,000 per day for each violation of the ordinance, with each day in violation constituting a new and separate offense.

(d) A home rule unit may not enact an ordinance, rule, or otherwise allow an adult entertainment facility to operate in a manner inconsistent with this Section or subsection (e) of Section 5-1097.5 of this Code. This Section is a limitation under subsection (g) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

(e) The provisions of this Section are severable under Section 1.31 of the Statute on Statutes.

(Source: P.A. 94-496, eff. 1-1-06.)

Section 10. The Illinois Municipal Code is amended by changing Section 11-5-1.5 as follows:

(65 ILCS 5/11-5-1.5)

Sec. 11-5-1.5. Adult entertainment facility.

(a) It is the intent of the General Assembly through this Section to control the negative secondary effects associated with the operation of adult entertainment facilities, including, but not limited to, negative impacts on surrounding properties, personal and property crimes, and vice activities, and to restrict the proximity of adult entertainment facilities near places where children and families are actively present, so as to promote the health, safety, and welfare of the citizens of Illinois.

This Section is not intended to deny access by adults to any expression that may be protected by the First Amendment of the United States Constitution or by the Illinois Constitution.

(b) It is prohibited within a municipality to locate an adult entertainment facility within 1,000 feet of the property boundaries of any school, day care center, cemetery, public park, forest preserve, public housing, and place of religious worship, except that in a county with a population of more than 800,000 and less than 2,000,000 inhabitants, it is prohibited to locate, construct, or operate a new adult entertainment facility within one mile of the property boundaries of any school, day care center, cemetery, public park, forest preserve, public housing, or place of religious worship located anywhere within that county. Notwithstanding any other requirements of this Section, it is also prohibited to locate, construct, or operate a new adult entertainment facility within one mile of the property boundaries of any school, day care center, cemetery, public park, forest preserve, public housing, or place of religious worship located in that area of Cook County outside of the City of Chicago. These provisions requiring a one-mile separation shall not be enforced if enforcement would fail to allow adult entertainment facilities reasonable alternative avenues of communication.

(c) For the purposes of this Section, "adult entertainment facility" means (i) a movie theater, lounge, nightclub, bar, juice bar, or similar commercial establishment that regularly features a striptease club or pornographic movie theatre whose business is the commercial sale, dissemination, or distribution of sexually explicit material, shows, or other exhibitions characterized by an emphasis on the display of specified anatomical areas or specified sexual activities, or (ii) a store whose primary business is the commercial sale, dissemination, or distribution of materials, shows or other exhibitions characterized by an emphasis on the display of specified anatomical areas or specified sexual activities, or devices, other than devices designed to prevent pregnancy or sexually transmitted diseases, that are designed for use during specified sexual activities. As used in this subsection (c), "specified anatomical areas" and "specified sexual activities" shall have the meanings given to those terms in Section 5-1097.7 of the Counties Code an adult bookstore or adult video store in which 25% or more of its stock-in-trade, books, magazines, and films for sale, exhibition, or viewing on-premises are sexually explicit material.

(d) The State's Attorney of the county where the adult entertainment facility is located or the Attorney General may institute a civil action for an injunction to restrain violations of this Section. Those persons and entities authorized to bring an action under Section 11-13-15 of this Code to enjoin a zoning violation may bring an action to enjoin a violation of this Section, and may obtain the remedies set forth in Section 11-13-15 of this Code. In any enforcement proceeding, the court shall determine whether a violation has been committed and shall enter such orders as it considers necessary to remove the effect of any violation and to prevent the violation from continuing or from being renewed in the future.

(e) A home rule unit may not enact an ordinance, rule, or otherwise allow an adult entertainment facility to operate in a manner inconsistent with this Section, except that a home rule unit may lessen the required distance between an adult entertainment facility and any other land use listed in subsection (b) of this Section to not less than 250 feet. This Section is a limitation under subsection (g) of Section 6 of Article VII of the Illinois Constitution on the concurrent exercise by home rule units of powers and functions exercised by the State.

(f) The provisions of this Section are severable under Section 1.31 of the Statute on Statutes.

(Source: P.A. 95-47, eff. 1-1-08; 95-214, eff. 8-16-07; 95-876, eff. 8-21-08.)

Section 99. Effective date. This Act takes effect upon becoming law.