HF 2334 (LSB 5507YH (3) 90)

HOUSE FILE 2334

BY  VONDRAN

A BILL FOR

An Act relating to public safety nuisances at adult cabarets, and making penalties applicable.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  657.12  Adult cabarets.
   1.  As used in this section, unless the context otherwise requires:
   a.  “Adult cabaret” means any commercial establishment that more than a de minimis portion of its business involves any of the following:
   (1)  Persons who appear or perform nude.
   (2)  Live performances that are distinguished or characterized by an emphasis on the exposure, depiction, or description of a specified anatomical area or the performance or simulation of a specified sexual activity.
   b.  “Nude” means a state of dress or undress that exposes to view a specified anatomical area.
   c.  “Specified anatomical area” means any of the following:
   (1)  Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breast below a point immediately above the top of the areola but not including any portion of the cleavage exhibited by a dress, blouse, shirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed.
   (2)  Human male genitals in a discernibly turgid state, even if completely and opaquely covered, or any device or covering that, when worn, simulates human male genitals in a discernibly turgid state.
   d.  “Specified sexual activity” means any of the following:
   (1)  The fondling or touching of one person’s genitals, pubic region, buttocks, anus, or female breasts by another person.
   (2)  Sex acts, actual or simulated, including cunnilingus, fellatio, anilingus, bestiality, intercourse, oral copulation, or sodomy.
   (3)  Masturbation, actual or simulated.
   (4)  Excretory or urinary functions as part of or in connection with any of the activities set forth in this paragraph.
   2.  A public safety nuisance exists when it is established by clear and convincing evidence that an owner, manager, employee, contemporaneous patron, or guest of an adult cabaret commits any of the following acts either on the premises or within five hundred feet of the premises:
   a.  Unlawfully discharges a firearm or uses an offensive weapon, as defined in section 724.1, regardless of whether it inflicts injury or death.
   b.  Assaults another person with a dangerous weapon as defined in section 702.7 resulting in injury or death.
   c.  Engages in a riot as defined in section 723.1 on three or more dates within a twelve-month period to which the police respond and disperse a crowd. The participants need not be the same persons for each incident.
   3.  When the county attorney or city attorney believes a serious threat to the public safety exists, the county attorney, city attorney, or any other attorney on behalf of the county attorney or city attorney may file a suit in equity in the district court without bond seeking abatement of the public safety nuisance arising from an adult cabaret.
   4.  a.  Upon filing a suit pursuant to subsection 3, the petitioner may seek a temporary injunction. As part of any temporary injunction issued, and upon a showing of reasonable cause that a public safety nuisance exists, the court shall limit the business hours of the adult cabaret to be between the hours of 12:00 p.m. and 10:00 p.m. and prohibit the consumption of alcoholic beverages on the property.
   b.  This subsection shall not be construed to prohibit the court from ordering any other restrictions that the court deems appropriate including complete closure during the pendency of the action.
   5.  Upon finding a public safety nuisance exists, after trial, the court may enter judgment declaring the existence of the nuisance and ordering such remedial action to abate the nuisance as the court determines reasonable. The abatement order may take the form of an injunction. The duration of such abatement order may be up to two years. Remedial action may include but is not limited to temporary or complete closure, change in business practice or operation, or posting of a bond. If a bond is ordered and posted, the bond shall be subject to forfeiture, in whole or in part, for any further actions contrary to the abatement order.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill provides the circumstances where an adult cabaret is deemed to be a public safety nuisance and provides penalties. The bill provides that a public safety nuisance exists when an owner, manager, employee, contemporaneous patron, or guest of an adult cabaret commits any of the following acts either on the premises or within 500 hundred feet of the premises: (1) unlawfully discharges a firearm or uses an offensive weapon, (2) assaults another person with a dangerous weapon resulting in injury or death, or (3) engages in a riot three or more times in a 12-month period. The riot participants need not be the same persons for each incident. 
   The bill provides when the county attorney or city attorney believes a serious threat to the public safety exists, the county attorney, city attorney, or any other attorney on behalf of the county attorney or city attorney may file a suit in equity in the local district court without bond seeking abatement of a public safety nuisance arising from an adult cabaret.
   The bill provides that upon filing a suit, the petitioner may seek a temporary injunction which can include limitation of business hours of the adult cabaret and a prohibition on the consumption of alcoholic beverages on the property. The court may also order any other restrictions that it deems appropriate.
   The bill provides that if the court finds that a public safety nuisance exists, the court may enter judgment declaring the existence of the nuisance and ordering such remedial action to abate the nuisance. The abatement order may include an injunction of up to two years, temporary or complete closure, change in business practice or operation, or posting of a bond. Additionally, pursuant to Code section 657.3 (penalty —— abatement), a person who is convicted of erecting, causing, or continuing a public or common nuisance is guilty of an aggravated misdemeanor. An aggravated misdemeanor is punishable by confinement for no more than two years and a fine of at least $855 but not more than $8,540.