CHAPTER 413

FORMERLY

HOUSE BILL NO. 1022

AN ACT TO AMEND CHAPTER 16 OF TITLE 24 OF THE DELAWARE CODE BY PROVIDING FOR THE LICENSING OF MASSAGE ESTABLISHMENTS, ADULT BOOKSTORES AND OTHER ADULT ENTERTAINMENT ESTABLISHMENTS.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 16, Title 24 of the Delaware Code by striking the word "Massage Establishments and Adult Book Stores" as the same appear in the catch line and substitute in lieu thereof "Adult Entertainment Establishments".

Section 2. Amend Section 1601, Title 24 of the Delaware Code by striking the words "adult book stores and massage establishments" as the same appear in the second sentence of the first paragraph and substitute in lieu thereof the words "adult entertainment establishments".

Section 3. Amend Section 1602, Title 24 of the Delaware Code by striking subsection (2) in its entirety and substituting in lieu thereof the following:

"(2) 'Adult Entertainment Establishment' shall mean any commercial establishment, business or service, or portion thereof, which offers sexually oriented material, devices, paraphernalia or specific sexual activities, services, performances, or any combination thereof, or in any other form, whether printed, filmed, recorded or live. The term 'Adult Entertainment Establishment' shall include but not be limited to such activities as:

(a) 'Adult Book Stores' shall mean any corporation, partnership, or business of any kind which has as part of its stock books, magazines, or other periodicals and which offers, sells, provides or rents for a fee:

(1) any sexually oriented material, and which business restricts or purports to restrict admission to adults, within the meaning of this chapter, or to any class of adults; or

(2) any sexually oriented material which is available for viewing by patrons on the premises by means of the operation of movie machines or slide projectors; or

(3) any sexually oriented material which has a substantial portion of its contents devoted to the pictorial depiction of sadism, masochism or beast Islay; or

(4) any sexually oriented material which has as its principal theme the depiction of sexual activity by, or lascivious exhibition of, the uncovered genitals, pubic region, or buttocks of children who are of or appear to be under the age of 18.

(b) 'Conversation Parlors', Relaxation Studios', 'Health Salons', or 'Call Services' which shall mean any commercial business, enterprise, or service which offers or which holds itself out as offering conversations or relaxation or any other services whereby any employee, attendant or patron is involved in specific sexual activities or representations thereof.

(c) 'Adult Shows' or "Adult Peep Shows' which shall include all adult shows, exhibitions, performances, or presentations which contain acts or depictions of specific sexual activities.

(d) 'Adult Motion Picture Threatres' which shall mean an enclosed building used for presenting film presentations which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specific sexual activities for observation by patrons therein.

(e) 'Massage Establishments' which shall mean any business or enterprise which offers, sells or provides, or which holds itself out as offering, selling or providing, massages which include bathing, physical massage, rubbing, kneading, annointing, stroking, manipulating or other tactile stimulation of the human body, by either male or female employees or attendants, by hand or by any electrical or mechanical device, on or off the premises. This term shall not include the business or occupation of a chiropractor, chiropodist, podiatrist, barber, nurse, optometrist, cosmetologist, dentist, physician, physical therapist or operator of a funeral establishment, who is certified, registered or licensed pursuant to this title, or a hospital which is licensed pursuant to Title 16 or athletic coach or trainer."

Section 4. Amend Section 1602, Title 24 of the Delaware Code by striking subsection (5) in its entirety and substituting in lieu thereof the following:

"(5) 'Commission' shall mean the Commission on Adult Entertainment Establishments."

Further amend Section 1602 of Chapter 18 of Title 24 of the Delaware Code by striking subsection (17) of said Section and substituting in lieu thereof the following:

"(17) 'Specific sexual activities' shall be defined as including the following sexual activities and/or the exhibition of the following anatomical areas:

(1) human genitals in the state of sexual stimulation or arousal; or

(2) acts of human masturbation, sexual intercourse, sodomy, cunnilingus, fellatio or any excretory function, or representation thereof; or

(3) the fondling or erotic touching of human genitals, pubic region, buttocks or the female breasts; or

(4) less and completely opaquely covered:

(a) human genitals, pubic region,

(b) buttocks,

(c) female breasts below the top of the areola, or

(d) human male genitals In a discernable turgid state, even if completely and opaquely covered."

Section 5. Amend Section 1603, Title 24 of the Delaware Code by striking the words "Commission on Massage Establishments and Adult Book Store" as the same appear In the catch line and in subsection (a) of Section 1603 and substituting in lieu thereof in each instance the words "Commission on Adult Entertainment Establishments".

Section 6. Amend Section 1604 (a) of Title 24 of the Delaware Code by striking the words "massage establishments and adult book stores" and substituting in lieu thereof the words "adult entertainment establishments".

Section 7. Amend Section 1605(a) Title 24 of the Delaware Code by striking the words "massage establishments, massagists, and adult book stores" and substituting in lieu thereof the words "adult entertainment establishments and massagists".

Section 8. Amend Section 1606(a), Title 24 of the Delaware Code by striking the words "a massage establishment, adult book store" and substituting in lieu thereof the words "an adult entertainment establishment".

Section 9. Amend Section 1606(c), Title 24 of the Delaware Code by striking the words "a massage establishment or an adult book store" and substitute in lieu thereof the words "an adult entertainment establishment".

Section 10. Amend subsection (e) of Section 1606, Title 24 of the Delaware Code by striking the words "a massage establishment or adult book store" and substitute in lieu thereof the words "an adult entertainment establishment".

Section 11. Amend Section 1607, Title 24 of the Delaware Code by striking subsection (a), (b), and (c) in their entirety and substituting in lieu thereof the following:

"(a) No license for the operation of an adult entertainment establishment under this Chapter shall be issued unless the applicant thereof shall have paid an annual license fee of one hundred ($100) dollars plus a fee of twenty-five ($25) dollars for each separate branch or business location.

(b) No license to engage in the occupation of massagist shall be issued under this Chapter unless the applicant shall have paid an annual license fee of twenty-five ($25) dollars.

(c) Nothing in this Chapter, however, shall be construed to effect or impair in any manner the requirements of Title 30 of the Delaware Code."

Section 12. Amend Section 1609(b), Title 24 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(b) Every license for the operation of an adult entertainment establishment shall describe the nature of the business or enterprise as 'massage establishment', 'adult bookstore', or as otherwise appropriate within the meaning of Section 1602(2), and the location of the premises at which such business is authorized. Where the licensee is a corporation, the license shall state the name and address of said corporation's registered agent in this State, and the name of its registered agent at such address."

Section 13. Amend Section 1610 (a), Title 24 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(a) No license issued under this Chapter shall authorize the licensee to engage in or carry on the business of operating an adult entertainment establishment in any place other than the premises set forth in said license. In addition, each applicant or licensee- seeking a license or renewal must affirmatively establish within their application that the location or proposed location of the place of business is in compliance with all applicable laws and ordinances. If a licensee changes his location of his place of business during the period for which the license was issued, the license shall be amended by making application In accordance with the provisions of this Act in making a new application, to authorize business at the new location, provided that said business is otherwise permitted at the new location by applicable law and ordinance.

Section 14. Amend Section 1611(a), Title 24 of the Delaware Code by striking the words "a massage establishment or an adult book store' and substituting in lieu thereof the words "an adult entertainment establishment".

Section 15. Amend Section 1613, Title 24 of the Delaware Code by striking the words "Massage Establishment and Adult Book Store" as the same appear in the catch line and subsection (a) of said Section and substitute in lieu thereof the words "an Adult Entertainment Establishment".

Section 16. Amend Section 1613(b), Title 24 of the Delaware Code by striking the said subsection and substituting in lieu thereof the following:

"(b) Every Application for license for the operation of an adult entertainment establishment shall state the full name(s) of the applicant appearing pursuant to Section 1615 of this Act, including nicknames(s) or alias(es), residential address(es), place(s) of employment, including address(es) and phone number(s), social security number, date of birth, driver's license number, and a photograph of the applicant taken within thirty days of the application, Federal Employers Identification Number, and an address of the premises for which the application for license is made. Each application shall further provide the full name(s), including nickname(s) and alias(es), residential address(es), place of employment(s) including address(es) and phone number(s), date of birth, social security number and a recent photograph taken within thirty days of providing this information to the Commission, of those persons employed by the adult entertainment establishment, and to specifically identify who is to be responsible for the day to day management of the adult entertainment establishment."

Section 17. Amend Section 1613(e), Title 24 of the Delaware Code by striking the words "adult book store" and substituting M lieu thereof the words "adult entertainment establishment".

Section 18. Amend Section 1616(a), Title 24 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the followings

"(a) The Commission after a hearing shall issue a license for the operation of an adult entertainment establishment for every applicant who shall have satisfactorily completed and filed an Application for license as required by this Chapter and shall have paid the required fee."

Section 19. Amend Section 1617(a), Title 24 of the Delaware Code by striking the words "adult book store" and substituting in lieu thereof the word "adult entertainment establishments other than a Massage Establishment".

Section 20. Amend subsections (a) and (b) of Section 1619, Title 24 of the Delaware Code by striking said subsections in their entirety and substituting in lieu thereof the following:

"(a) The Commission shall not suspend or revoke any license under this Act except after a hearing where the licensee has been given at least twenty days’ notice in writing, specifying the reason or reasons for such suspension or revocation and a date of the hearing.

(b) Any hearing pursuant to this Section or Section 1616 shall be at such time and place as the Commission shall prescribe, but no later than twenty days after the Commission is in receipt of a completed application or twenty days after a licensee has received notice of a proposed suspension or revocation action. Failure of the person or persons to appear after receiving notice shall constitute a waiver of the right to appear in such hearing."

Section 21. Amend Section 1621(b), Title 24 of the Delaware Code by striking said subsection in its entirety and substituting in lieu thereof the following:

"(b) Every adult entertainment establishment which is licensed under this Chapter shall maintain on the premises a record which shall state the name and address of every person, distributor, wholesaler or publisher from whom said establishment has received any sexually oriented material, and the date such material was received, for purposes of sale, exhibition or dissemination on the premises after the effective date of this chapter."

Section 22. Amend Section 1623, Title 24 of the Delaware Code by striking the words "a massage establishment or adult book store" and substitute in lieu thereof the words "an adult entertainment establishment".

Section 23. These amendments to the Act shall become effective thirty (30) days after this Act becomes law.