HomeMy WebLinkAboutBy-law 5828/01THE CORPORATION OF THE CITY OF PICKERING
BY-LAW NUMBER 5828/01
Being a by-law respecting the licensing,
regulating and governing of adult
videotape stores, and for regulating
videotape stores in which adult videotapes
are provided.
WHEREAS Part XVII.I of the Municipal Act, R.S.O. 1990, c. M.45, as amended (the
"Act"), provides for the licensing, regulating and governing of businesses by local
municipalities; and
WHEREAS section 225 of the Act also specifically authorizes councils of all
municipalities to pass by-laws for licensing, regulating, governing, classifying and
inspecting adult entertainment parlours or any class or classes thereof and for revoking or
suspending any such licence; and
WHEREAS "adult entertainment parlour" is defined in subsection 225(9) of the Act to
mean any premises or part thereof in which is provided in pursuance of a trade, calling,
business or occupation, goods or services appealing to or designed to appeal to erotic or
sexual appetites or inclinations; and
WHEREAS "goods" are defined in subsection 225(9) of the Act to include books,
magazines, pictures, slides, films, phonograph records, pre-recorded magnetic take and
other reading, viewing or listening matter; and
WHEREAS the Council of the Corporation of the City of Pickering (the "Council" of the
"City") has deemed it desirable to enact a By-law for the licensing, regulating and
governing of adult videotape stores as a class of adult entertainment parlour pursuant to
the provisions of the Act referred to above; and
WHEREAS subsection 225(3) of the Act provides that, despite subsection 257.2(4) of the
Act, a by-law passed under section 225 of the Act may define the area or areas of the
municipality in which adult entertainment parlours or any class or classes thereof may or
may not operate and may limit the number of the licences to be granted in respect of adult
entertainment parlours or any class or classes thereof in any such area or areas in which
they are permitted; and
WHEREAS the Council deems it desirable to enact a by-law defining areas of the City in
which, subject to all other applicable law, adult videotape stores may operate, and areas
in which adult videotape stores may not operate, and limiting the number of licences to
be granted in respect of adult videotape stores in the City;
NOW THEREFORE the Council of the Corporation of the City of Pickering ENACTS as
follows:
DEFINITIONS
1. In this By-law:
(a) (i)
"adult videotape" means any videotape 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 or more persons involved or
engaging in specified sexual activities, or by an emphasis on the
display of human specified body areas;
(ii)
in the absence of evidence to the contrary, a videotape classified by
the Ontario Film Review Board as "restricted", with the added
description "adult sex film", shall be deemed to be an adult
videotape;
(b)
"adult videotape area" means an identifiable part of any premises, which
part is used for the provision of adult video tapes;
(c) "adult videotape store" means any premises:
(i)
subject to section 3, used for the carrying on of the business of the
provision of exclusively adult videotapes; or
(ii)
in which adult videotapes are provided in the pursuance of a
business and to which premises entry by persons under the age of
18 years is prohibited, or in respect of which premises it is
advertised or notice is given that such entry is prohibited; or
(iii)
in which adult videotapes are provided in the pursuance of a
business and in respect of which it is advertised, or notice is given
either by signs or other advertising devices on or in the premises,
or otherwise, that the premises are an "adult video store", an "adult
videotape store", an "adult video rental store", or which are
otherwise described by words of like meaning;
(d)
"committee" means a committee of the Council appointed by by-law to
conduct one or more, hearings under the provisions of this By-law;
(e) "Council" means the Council of the Corporation of the City of Pickering;
(0
"Manager" means the Manager of the By-law Enforcement Services
Division or, in his or her absence, any person authorized to fulfill the
responsibilities of the Manager;
(g)
"Licensing Section" means the Licensing Section of the By-law
Enforcement Services Division of the City;
"operator" includes a proprietor, or any other person who alone or with
others, manages, supervises, runs or controls a videotape store;
(i)
"owner" means a person who alone or with others has a right to possess or
occupy a videotape store or actually does possess or occupy a videotape
store, and includes a lessee of a videotape store or of premises upon which
a videotape store is located;
(j) "premises" includes a building or any part thereof, and any place;
(k)
(1)
(m)
(o)
(P)
"to provide" when used in relation to any videotape, means to sell, offer to
sell or display for sale by retail, or to rent, offer 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;
"City" means the Corporation of the City of Pickering;
"specified body areas" means any one or more of the following:
(i) in the case of a female person, her areolae; and
(ii) in the case of all persons, the genitals and the anus;
"specified sexual activities" means one or more of the following:
actual or simulated sexual intercourse, masturbation, urination,
defecation, ejaculation, sodomy, including bestiality, anal
intercourse, and oral sexual intercourse, direct physical stimulation
of unclothed genital organs, and flagellation or torture in the
context of a sexual relationship or activity;
"videotape" means cinematographic film, videotape and any other medium
from which may be produced visual images that may be viewed as moving
pictures;
"videotape store" means any premises or part thereof in which videotapes
are provided in the pursuance of a business, and includes an adult
videotape store.
LICENCE REQUIREMENT
There shall be taken out by every owner and every operator of an adult videotape
store a licence from the Council authorizing him or her to carry on such business
in the City, for which licence the person obtaining same shall pay to the Council,
at or before the time of taking out such licence, the fee fixed by this By-law, and
no person shall, within the limits of the City, carry on or engage in such business
until he or she has procured such licence so to do.
The regulations contained in this By-law relating to the display of adult
videotapes and to the prohibition of admission to all or part of premises by
persons under the age of 18 years, shall apply to all videotape stores.
DEFINED AREAS AND LIMITATION ON NUMBERS OF LICENCES
4. (1)
Subject to subsection (2), the area of the City defined in Schedule "B" to
this By-law, which Schedule shall be deemed to be part of this By-law, is
an area in which three adult videotape stores may operate and no adult
videotape stores are permitted to operate in any other area or areas of the
City.
(2)
No adult video store shall be permitted to operate within 250 metres of a
school building.
(3)
No person shall operate an adult videotape store in the City except as
permitted under this By-law and pursuant to a licence issued under this
By-law.
ADMINISTRATION
5. The Licensing Section shall:
(a) receive and process all applications for licences required under this By-
law;
(b) administer the issuance of licences in accordance with the provisions of
this By-law;
(c) maintain and keep records of all applications received and licences issued;
(d) generally perform administrative functions incidental and necessary to the
due administration and enforcement of this By-law.
APPLICATIONS FOR LICENCES
6. (1)
Every person applying for a licence under this By-law shall file with the
Licensing Section a duly completed application form provided by the
Licensing Section, in which the applicant shall provide all information
sought in such application form.
(2)
The applicant shall, at the time of the filing of the application form
required under subsection (1), deliver to the Licensing Section the
following:
(a)
cash, money order or certified cheque in the amount of the licence
fee, fixed pursuant to Schedule "A" of this By-law, for every
licence required under this By-law or for the renewal thereof;
(b)
if the applicant is a corporation, a copy of the incorporating
document and of the last annual information remm filed, and a list
of the names and home addresses of the directors, shareholders and
officers of the corporation and of any corporation having an
interest, direct or indirect, in the adult videotape store; and
(c)
if the applicant is a partnership, a list of the names and home
addresses of the parmers, and if a registered partnership, a copy of
the registered declaration of parmership.
o
Every application form shall include a requirement that the applicant provide at
least the following information:
(a) the name and address of the applicant;
(b)
the address of the applicant and of the intended licensee, to which the City
or its Licensing Section may send or deliver any notice or other document
required or authorized by law;
(c)
the municipal address of each building, premises or place in respect of
which a licence is sought and where a business licensed or required to be
licensed is or is intended to be carried on;
(d)
the name and address of the owner of any building, premises or place in
which any such business is to be carried on;
(e) any trade or business description to be used in relation to the business;
(f) the telephone number of such business;
(g)
a record of all offences, other than offences relating to motor vehicles,
under any by-law, provincial statute or federal statute in respect of which
the applicant, if the applicant is an individual, any of the partners, if the
applicant is a partnership, or any of the directors, shareholders and officers
of a corporation, if the applicant or any party having a direct or indirect
interest in the business, is a corporation, has or have been convicted; and
(h)
the measurements of the floor area in the premises in which videotapes are
or are to be displayed or provided, and of the area, if such is smaller, used
or to be used for the provision or display of adult videotapes.
o
If the applicant is not an individual, the application form shall be
completed and updated from time to time as this By-law requires, by an
individual duly authorized by the applicant to execute such form on behalf
of the applicant and binding upon it, and the individual completing such
form shall sign the form, certifying the troth and completeness of the
information provided therein.
(2)
The provisions of this By-law relating to an application for a licence shall
apply, with necessary modifications, to an application for the renewal of a
licence or to amend a licence or a condition of such licence, except that
where the applicant notifies the Licensing Section in writing that the
information on file with the Licensing Section has not changed, the
applicant shall not be required to complete a new application form or
amendment thereto in respect of an application for renewal.
(1)
Upon the receipt of an application form by the Licensing Section, the
Manager shall carry out such investigation or verification relating to the
application as he or she may deem necessary for the purposes of the
administration of this By-law and, if the investigation or any other
information available to the Manager discloses no reasonable grounds to
believe that the application is not in compliance with the By-law, or that
the applicant may not be entitled to the issuance of a licence on the
grounds referred to in this By-law or by reason of any other provision of
this By-law or other applicable law, may issue the licence.
(2)
If the investigation or any other information available to the Manager
discloses reasonable grounds to believe that the applicant may not be
entitled to the issuance of a licence on grounds referred to in this By-law,
or by reason of any other provision of this By-law or other applicable law,
or if for any other reason the Manager does not issue the licence applied
for, the Manager shall forthwith cause notice of this fact and the reasons
therefor to be served upon the applicant at the address shown on the
application form, and refer the matter to the Council, or to a committee
established by by-law of the Council for the holding of a heating under
this By-law.
(3)
The Manager shall, in any notice served under subsection (2), include in
such notice a statement that the applicant may require a hearing of the
application by the council or a committee of the Council, as the case may
be, by serving a notice in writing to that effect upon the Manager within
15 days of the date of the notice, and a statement that if no such notice is
served by the applicant the application may not be granted and the
applicant will not be entitled to any further notice in the proceedings.
(4)
Where the Manager receives notice from an applicant requiring a heating
in accordance with this section, the Manager shall forthwith refer the
application to the Council or committee as the case may be, for a hearing.
10.
11.
(5)
Where the Manager does not receive notice from an applicant requiring a
hearing in accordance with this section, the Manager need not process the
application further, and no further notice is required to be served upon the
applicant.
(6)
Where an application has been referred to the Council or a committee for a
hearing under this section, and the applicant does not attend before the
Council or committee at the time and place of which notice has been
served upon such applicant in accordance with this By-law, the Council or
the Committee may hold a hearing in the absence of the applicant or may
decide to take no further action with respect to the application, and no
further notice is required to be served upon the applicant.
Where the Manager has referred an application to the Council or a committee for
a hearing pursuant to section 9 of this By-law, the Council or the committee may,
after a hearing, or after an opportunity for a hearing has been given to the
applicant:
(a)
grant the application in whole or in part and direct that the licence be
issued, subject to compliance with this By-law;
Co)
grant the application subject to such conditions as the Council or the
committee, as the case may be, in accordance with this By-law, considers
just and equitable in attaining the purposes of this By-law, and direct that
the licence be issued subject to such conditions and to compliance with
this By-law;
(c)
refuse in whole or in part to grant the application upon grounds contained
in this By-law or otherwise by-law; or
(d)
adjoum the application in accordance with this By-law, or make such other
disposition as may be permitted under this By-law and is in accordance
with law.
The following are grounds upon which the Council may refuse to grant any
application for a licence, or suspend or revoke any licence under this By-law:
(a)
there are reasonable grounds for belief that any application or other
document provided to the Licencing Section by or on behalf of the
applicant contains a false statement or provides false information; or
Co)
the past or present conduct of the applicant, or of any partner, in the case
of an applicant which is a partnership, or of any director, shareholder or
officer of the corporation, if the applicant or a party having a direct or
indirect interest in the business, is a corporation, affords reasonable
grounds for belief that the business in respect of which the application is
made will not be carried on in accordance with the law and with integrity
and honesty; or
(c)
there are reasonable grounds for belief that the carrying on of the said
business will result in a breach of this By-law or any other law, including
any applicable zoning requirement; or
(d)
the financial position of the applicant affords reasonable grounds to
believe that the business will not be carried on in a financially responsible
manner; or
(e)
(f)
(g)
(i)
there are reasonable grounds for belief that the application does not meet
all the requirements of this By-law, or that the business is carded on or
intended to be carried on in an area of the City where such business is
prohibited by this By-law from being carded on, or is one in respect of
which the issuing of a licence in respect of the business is not permitted by
this By-law; or
there are reasonable grounds for belief that the building, premises or place
in which the business is carried on, or intended to be carded on does not
comply with the provisions of this By-law or with any other law, including
any applicable building requirements, or is dangerous or unsafe; or
the conduct of the applicant or of one or more of the persons referred to in
paragraph (b) of this subsection affords reasonable grounds for belief that
the carrying on of the business in respect of which the licence is sought
would infringe the fights, or endanger the health or safety, of one or more
members of the public or
the applicant if not prepared to comply, or does not comply or ensure
compliance, with any condition imposed or intended to be imposed, under
this By-law upon the business or upon the licensee, as a requirement of
obtaining, continuing to hold or renewing a licence; or
the fee payable in respect of the licence applied for has not been paid.
HEARINGS
12. (1)
(2)
(3)
The provisions of ss. 5 to 15, 17(1), 18 and 21 to 24 of the Statutory
Powers Procedure Act, as amended, shall apply to all hearings conducted
by Council or a committee under this By-law.
Upon the conclusion of a hearing conducted by a committee under this
By-law, the committee shall as soon as practicable make a written report
to the Council summarizing the evidence and arguments presented by the
parties, the findings of fact made by the committee and the
recommendations, if any, of the committee, with reasons therefor, on the
merits of the application or matters in respect of which the hearing has
been conducted.
After conducting, a hearing, or after considering, a report of the
committee, the Council may thereupon in respect of such application or
matter, make any decision permitted under this By-law in respect of the
granting or refusal of a licence, the imposing of conditions on a licence, or
the revocation or suspension of a licence.
REVOCATION, SUSPENSION, PROBATION
13.
The Council may revoke or suspend any licence issued under this By-law, upon
any of the grounds set out in section 11, provided that no licence shall be revoked
or suspended except after a hearing by the Council, or a committee appointed by
by-law for the holding of one or more heatings, or after an opportunity for such a
hearing has been afforded to the licensee, in accordance with law.
14.
(1)
Where the Council or a committee concludes that grounds exist upon
which a licence may be refused, suspended or revoked, the Council may,
in lieu thereof, issue a licence for any period up to a full licence period, on
probation, or without a term of probation, subject to such conditions as the
Council may impose and are in accordance with law.
(2)
The Manager may, where he or she has reasonable grounds to believe that
any one or more grounds exist upon which a licence could be refused,
revoked or suspended, or render it appropriate that general or special
conditions be imposed as a requirement of continuing to hold a licence,
provide written notice to the licensee and to the Council of such fact, and
provide notice to the licensee of a right to a hearing, in accordance with
this By-law and other applicable law.
ISSUANCE AND TERMS OF LICENCES
15.
Every licence issued under this By-law may be issued for any period up to one
year, and shall expire on December 31 of the year in which it is issued.
16.
A licence issued under this By-law is personal to the licensee, and cannot be
transferred.
17.
The rights granted by a licence issued under this By-law apply only to the location
for which the licence is issued.
18.
Where a completed application form for the renewal of a licence is not submitted
to the Licensing Section before the expiry date, the applicant shall be required to
submit a new application, together with the application fee.
19.
Where a licence is revoked, the licensee is entitled to a refund of a part of the
licence fee proportionate to the unexpired part of the term for which it was
granted.
NOTICE
20. (1)
(2)
Any notice or other information required or authorized to be given under
this By-law is sufficiently given if delivered personally or sent by
registered mail addressed to the person to whom delivery is required to be
made at the last address for delivery appearing on the records of the
Manager.
Where service is effected by registered mail, it shall be deemed to be made
on the third day after the date of mailing, unless the person on whom
service is being made establishes that he or she did not, acting in good
faith, through absence, accident, illness or other cause beyond his or her
control, receive the notice or order until a later date.
CHANGES IN INFORMATION
21. (1)
Every licensee shall notify the Licensing Section in writing within four
days after the event, of any change in any of the information contained in
the application form.
(2)
Where a change has occurred in the name or business name of a licensee,
the licensee shall attend within four days of the date of the change, at the
office of the Licensing Section, to have the licence and licence records
amended accordingly.
REGULATIONS APPLICABLE TO ADULT VIDEOTAPE STORES
22. Every licensee shall:
(a)
prominently display the licence at the premises licensed at all times and
shall produce the licence upon request by the Manager, any by-law
enforcement officer and any police officer;
(b) keep the premises in a clean and sanitary condition;
(c)
maintain on the premises, during all business hours, available for
inspection by the Manager, any By-law Enforcement Officer or any Police
Officer, a current list of all adult videotapes provided on the premises;
(d)
carry on business only in the name in which the licence is issued, or such
other business or trade name provided to the Licensing Section and
endorsed by it upon such licence; and
(e)
advertise, promote and carry on such business only under the name in
which the licence is issued, or such other business or trade name provided
to the licensing section and endorsed by it upon such licence.
23.
No owner, operator or any person working in an adult videotape store or
adult videotape area shall permit any person under the age of eighteen
years to enter or remain in such store or area.
(2)
No owner, operator or any other person shall work in an adult videotape
store or adult videotape area or in any part of any videotape store in which
adult videotapes are provided, unless such person is of the age of eighteen
years or older.
24.
Every operator shall post and keep posted at every entrance to any adult
videotape store operated by such operator, and in a prominent location
inside such 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 years is permitted to enter or remain in
such store or any part thereof.
(2)
Exterior signs and advertisements relating to adult videotape stores and to
the provision of adult videotapes, shall be restricted to the words "adult
videos", "adult videotapes", or "adult videotapes sales or rentals" and shall
not include pictorial representation of specified body areas or specified
sexual activities.
REGULATIONS APPLICABLE TO ALL VIDEOTAPE STORES
25. 0)
Every owner and every operator of a videotape store, whether or not he or
she is licensed or required to be licensed under this By-law, shall, in the
carrying on of such business, comply with the regulations contained in this
By-law relating to the provision of adult videotapes.
(2)
Every owner and operator referred to in subsection (1) shall ensure that
every person working in such videotape store complies with all
requirements of this By-law relating to the provision of adult videotapes
and the prohibition of access to all or part of the premises to persons under
the age of eighteen years, as required by this By-law.
(3)
26. (1)
(2)
(3)
(4)
(5)
Every person working in a videotape store shall comply with all
requirements of this By-law relating to the provision of adult videotapes
and the prohibition of access to all or part of the premises to persons under
the age of eighteen years, as required by this By-law.
No owner or operator of a videotape store in which adult videotapes are
provided, shall permit any person under the age of eighteen years to enter
or remain in any part of such store where adult videotapes are provided, or
within three metres of any adult videotape unless such adult videotape is
located in an adult videotape area;
Every owner and operator of a videotape store in which any adult
videotape is provided, shall affix, in a prominent location inside such store
and at every entrance to any adult videotape area, a sign or signs sufficient
to indicate clearly to persons in the store, that no person under the age of
eighteen years is permitted to enter or remain in any adult videotape area
in accordance with this By-law.
Every operator of a videotape store, including an adult videotape store,
and every person working in such store, shall ensure that no person under
the age of eighteen permitted to enter an adult videotape store, or any
adult videotape area, in accordance with this By-law.
Every operator of videotape store and every person working in such store
shall ensure that no adult videotape, or container for an adult videotape
shall be displayed in such a manner so as to be visible from outside the
store.
Every operator of a videotape store and every person working in such store
shall ensure that no adult videotape, or container for an adult videotape,
shall be displayed in a videotape store that is not an adult videotape store,
in a location where it can be seen by persons in the store, unless such adult
videotape or container is in a separate location in such store to which
persons under the age of eighteen years are not permitted to enter, and
such adult videotape or container is displayed in a location where it cannot
be seen from outside such area.
PENALTY
27. (1)
(2)
Every person who contravenes any provision of this By-law, and every
director or officer of a corporation who concurs in such contravention by
the corporation, is guilty of an offence and on conviction is liable to a fine,
exclusive of costs, not exceeding $25,000.00.
Where a corporation is convicted of an offence under this By-law, the
maximum penalty, exclusive of costs, that may be imposed on the
corporation is $50,000.00, and not as provided in subsection (1).
VALIDITY
28.
If a court of competent jurisdiction declares any provision, or any part of a
provision of this By-law to be invalid, or to be of no force and effect, it is the
intention of the Council in enacting this By-law, that each and every other
provision of this By-law authorized by law, be applied and enforced in accordance
with its terms to the extent possible according to law.
SHORT TITLE
29.
This by-law may be referred to as the Adult Videotape Licensing and Regulatory
By-law.
EFFECTIVE DATE
30. This By-law comes into force and effect on the day of its enactment.
31.
No adult videotape store shall be licensed under this By-law except in accordance
with Schedule "B", and no such licence may be granted for any adult videotape
store, except in respect of any part of premises lawfully used for the business of
the provision of adult videotapes on the date of enactment of this By-law, and
continued to be used for such purpose through the period up to the issuance of the
licence.
REPEAL OF BY-LAW
32. By-law Number 5474/99 is hereby repealed.
By-law read a first, second and third time and finally passed this 18t~ day of June, 2001.
Bruce Taylor, Clerk
SCHEDULE "A" TO BY-LAW NUMBER 5828/01
Adult Videotape Stores:
First Licence or Renewal
Owner/Operator: $1,500.00
Owner who does not operate: $1,400.00
Operator other than Owner: $ 100.00
For the term of any licence period expiring December 31st of any year.
PROHIBITED AREA
PER~I~TED AREAS
{PROPERTIES CONTIGUOUS
TO KINGSTON ROAD)
SCHEDULE 'B' TO
PASSED THIS 18th
DAY OF June 2001
CLERK
TR,aJL