No. 28904 (Amendment): R81-1-25. Sexually-Oriented Entertainers and Stage Approvals

DAR File No.: 28904
Filed: 07/31/2006, 11:56
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

State law permits the holders of certain alcoholic beverage licenses and permits to have sexually-oriented entertainment on their premises. The statutes for each of these (Subsections 32A-4-106(22), 32A-4-307(22), 32A-5-107(40), 32A-7-106(5), 32A-10-206(14), and 32A-10-306(5)) are specific that entertainers shall perform upon a stage or at a designated area approved the the Alcoholic Beverage Control (ABC) Commission. To this point, the ABC Commission has had no standardized written specifications for these stages and has, therefore, directed staff to draft a proposed section that outlines the minimum structural requirements for stages that are used by sexually-oriented entertainers.

 

Summary of the rule or change:

This proposed section defines applicable terms, clarifies what activities and behaviors sexually-oriented entertainers or patrons may not engage in, and provides specific stage requirements intended to keep entertainers and patrons from coming into physical contact with one another.

 

State statutory or constitutional authorization for this rule:

Section 32A-1-107, and Subsections 32A-4-106(22), 32A-4-307(22), 32A-5-107(40), 32A-7-106(5), 32A-10-206(14), and 32A-10-306(5)

 

Anticipated cost or savings to:

the state budget:

None--Some businesses that hold alcoholic beverage licenses choose to have sexually-oriented entertainment on their premises. State law requires that the stages where this type of entertainment takes place must be approved by the ABC Commission to ensure that a reasonable standard is met. This proposed section simply establishes the minimum physical standards for these stages and clarifies what type of entertainment the ABC Commission will approve in establishments that serve alcoholic beverages. There will be no fees collected for obtaining this approval, and implementing this proposed rule will not affect the state government budget.

 

local governments:

None--Businesses that choose to have sexually-oriented entertainment on their premises must first obtain an sexually-oriented business (SOB) license from local governing authorities. This requires that they comply with local ordinances, including regulations as to stage configuration, before they are granted the local SOB license. Any impact on local governments' budgets would be realized during this process and not as a result of alcoholic beverage licensees getting the additional approval from the ABC Commission. This proposed section simply sets standards for the ABC Commission to consider when granting the additional stage and entertainment approval required by law for alcoholic beverage licensees with sexually-oriented entertainment and will not affect the budgets of local governments.

 

other persons:

None--Stage structures and configurations for SOBs are strictly regulated by local governments. Seldom will the standard imposed by the ABC Commission be more restrictive than that of local authorities; therefore, it is unlikely a licensee will be required to alter a stage that has already been approved on the local level. This proposed section simply sets guidelines for the ABC Commissioners as they fulfill their statutory charge to approve stages and sexually-oriented entertainment for alcoholic beverage licensees. Implementing this proposed section will not involve an additional cost to licensees who seek the required ABC Commission approval since the rule does not assess any additional fees for application and/or compliance.

 

Compliance costs for affected persons:

None--Stage structures and configurations for sexually-oriented businesses are strictly regulated by local governments. Seldom will the standard imposed by the ABC Commission be more restrictive than that of local authorities; therefore, it is unlikely a licensee will be required to alter a stage that has already been approved on the local level. This proposed section simply sets guidelines for the ABC Commissioners as they fulfill their statutory charge to approve stages and sexually-oriented entertainment for alcoholic beverage licensees. Implementing this proposed section will not involve an additional cost to licensees who seek the required ABC Commission approval since the rule does not assess any additional fees for application and/or compliance.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This proposed rule will affect only those alcoholic beverage licensees and permitees who choose to offer sexually-oriented entertainment. These account for a very small percentage of total Department of Alcoholic Beverage Control licensees and permitees. The costs for complying with stage structure restrictions will not fiscally affect other unrelated businesses in the state. The intention of this proposed rule is to add a measure of control to the activities of SOBs. Kenneth F. Wynn, Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Alcoholic Beverage Control
Administration
1625 S 900 W
SALT LAKE CITY UT 84104-1630

 

Direct questions regarding this rule to:

Sharon Mackay at the above address, by phone at 801-977-6800, by FAX at 801-977-6889, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

09/14/2006

 

This rule may become effective on:

09/22/2006

 

Authorized by:

Kenneth F. Wynn, Director

 

 

RULE TEXT

R81. Alcoholic Beverage Control, Administration.

R81-1. Scope, Definitions, and General Provisions.

R81-1-25. Sexually-Oriented Entertainers and Stage Approvals.

(1) Authority. This rule is pursuant to the commission's powers and duties under 32A-1-107 to prescribe the conduct and management of any premises upon which alcoholic beverages may be sold, consumed, served, or stored. It is also pursuant to 32A-4-106(22), 32A-4-307(22), 32A-5-107(40), 32A-7-106(5), 32A-10-206(14), and 32A-10-306(5) that prescribe the attire and conduct of sexually-oriented entertainers in premises regulated by the commission and require sexually-oriented entertainers to perform in premises regulated by the commission only upon a stage or at a designated area approved by the commission.

(2) Purpose. This rule establishes guidelines used by the commission to approve stages or designated areas where sexually-oriented entertainers may perform, and provides guidelines for licensees and permittees to control the conduct of sexually-oriented entertainers when the entertainers mingle with patrons or other persons, or interact with other sexually-oriented entertainers in premises regulated by the commission.

(3) Definitions.

(a) "Sexually-oriented entertainer", for purposes of this rule, means any person, male or female, paid or unpaid, licensed or unlicensed, who dances, models, entertains or performs in a sexually provocative manner before patrons of a premises regulated by the commission through use or movement of their body, including but not limited to a dancer, stripper, model, mud or oil wrestler, and participant in a wet t-shirt or wet underwear contest.

(b) "Licensee" or "permittee" means a retailer authorized by the commission to sell, serve, or allow consumption of alcoholic beverages on its premises regardless of whether the retailer also holds a locally-issued sexually-oriented business license.

(c) "Mingling", for purposes of this rule, means the circulating, mixing, contacting, or having close face-to-face conversation between sexually-oriented entertainers and patrons, regardless of whether physical contact is made, on that portion of a premises regulated by the commission that is used by patrons.

(d) "Straddle dancing", for purposes of this rule, means the use by any sexually-oriented entertainer of any part of his or her body to touch the genitals, pubic region, buttock, anus or female breast of any patron or any other person, or the touching of the genitals, pubic region, buttock, anus or female breast of any person by a patron. Conduct shall be "straddle dancing" regardless of whether the "touch" or "touching" is direct or through a costume, clothing, or covering. "Straddle dancing", shall include but not be limited to conduct commonly referred to by the terms "lap dancing", "table dancing", and "face dancing".

(4) Application of Rule.

(a) A licensee or permittee may permit a sexually-oriented entertainer to perform only on a stage or performance area that has first been approved by the commission.

(b) A licensee or permittee may not permit a sexually-oriented entertainer to engage in mingling, as defined in this rule, if the sexually-oriented entertainer is unclothed or in attire, costume, or clothing that exposes to view any portion of the female breast below the top of the areola or any portion of the pubic hair, anus, cleft of the buttocks, vulva, or genitals.

(c) A licensee or permittee may not permit a sexually-oriented entertainer, patron, or any other person engage in straddle dancing with another person in any premises regulated by the commission.

(d) A licensee or permittee may not permit a patron to be on the stage or performance area while a sexually-oriented entertainer is on the stage or performance area.

(e) Nothing herein precludes a local authority from being more restrictive with respect to attire, costume, clothing, acts, or conduct of sexually-oriented entertainers in premises regulated by the commission.

(f) The following shall submit for commission approval a floor-plan containing the location of any stage or performance area where sexually-oriented entertainers perform:

(i) an applicant for a license or permit from the commission who intends to have sexually-oriented entertainment on the premises;

(ii) a current licensee or permittee of the commission that did not have sexually-oriented entertainment on the premises when application was made for the license or permit, but now intends to have such entertainment on the premises; or

(iii) a current licensee or permittee of the commission that has sexually-oriented entertainment on the premises, but has not previously had the stage or performance area approved by the commission.

(g) The commission may approve a stage or performance area where sexually-oriented entertainers may perform only if the stage or performance area:

(i) is horizontally separated from the portion of the premises on which patrons are allowed by a minimum of three (3) feet, which separation shall be delineated by a physical barrier or railing that is at least three (3) feet high;

(ii) is configured so as to preclude a patron from:

(A) touching the sexually-oriented entertainer;

(B) placing any money or object on or within the costume or on the person of any sexually-oriented entertainer;

(iii) is configured so as to preclude a sexually-oriented entertainer from touching a patron; and

(iv) conforms to the requirements of any local ordinance of the jurisdiction where the premise is located relating to distance separation requirements between sexually-oriented entertainers, as defined by this rule, and patrons that may be more restrictive than the requirements of Sections (4)(g)(i) through (iv) of this rule.

(h) The person applying for stage, platform, dance floor or area approval shall submit with their application a copy of any applicable local ordinance relating to distance separation requirements between sexually-oriented entertainers, as defined by this rule, and patrons.

 

KEY: alcoholic beverages

Date of Enactment or Last Substantive Amendment: [August 1, 2005]2006

Notice of Continuation: December 26, 2001

Authorizing, and Implemented or Interpreted Law: 32A-1-107; 32A-1-119(5)(c); 32A-3-103(1)(a); 32A-4-103(1)(a); 32A-4-106(22); 32A-4-203(1)(a); 32A-4-304(1)(a); 32A-4-307(22); 32A-4-403(1)(a); 32A-5-103(1)(a); 32A-5-107(40); 32A-6-103(2)(a); 32A-7-103(2)(a); 32A-7-106(5); 32A-8-103(1)(a); 32A-8-503(1)(a); 32A-9-103(1)(a); 32A-10-203(1)(a); 32A-10-206(14); 32A-10-303(1)(a); 32A-10-306(5); 32A-11-103(1)(a)