SB 115 — AN ACT relating to adult performances.

(14) "Escort agency" means a person or business association that furnishes, offers to furnish, or advertises the furnishing of an escort as one (1) of its primary business purposes for any fee, tip, or other consideration;

(15) "Floor space" means the floor area inside an establishment that is visible or accessible to patrons for any reason, excluding restrooms.

The term includes aisles, walkways used for access or display, and cashier stations where items are Page 4 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 displayed, viewed, sold, or rented;

(16) "Harmful to minors" means that quality of any description, depiction, or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse when it:

(a) Taken as a whole, appeals to the prurient interest of minors;

(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors;

and (c) Taken as a whole, lacks serious literary, artistic, political, or scientific values for minors;

(17) "Influential interest" means the actual power to control or influence the operation, management, or policies of a business or legal entity which operates the business and includes an individual who:

(a) Is the onsite manager of the business;

(b) Owns a financial interest of thirty percent (30%) or more of a business or any class of voting securities of a business;

or (c) Is an officer in a legal entity that operates the business;

(18) "Local unit of government" means any city, county, urban-county government, charter county government, consolidated local government, or unified local government;

(19) "Massage parlor that offers adult services" means an establishment that offers massage services characterized by an emphasis on sexual conduct or nudity;

(20) "Minor" or "minor child" means a person who has not reached the age of eighteen (18);

(21) "Nude," "nudity," or "state of nudity" means:

(a) Showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering;

(b) Showing the female breast with less than a fully opaque covering of any Page 5 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 portion below the top of the areola;

or (c) Depiction of covered male genitals in a discernibly turgid state;

(22) "Nude model studio" means a place where a person in a state of nudity is observed, sketched, drawn, painted, sculpted, photographed, or otherwise depicted by another person for money or other consideration.

"Nude model studio" shall not include a:

(a) Proprietary or private postsecondary institution that is licensed in this state;

(b) Public postsecondary education institution;

or (c) Structure containing an establishment for which:

1.

A sign is not visible from the exterior of the structure and no other advertising appears indicating that a nude person is available for viewing;

2.

Any person participating in a class has registered at least three (3) days in advance of the class;

and 3.

No more than one (1) nude or semi-nude model is on the premises at a time;

(23) "Obscene" means:

(a) To the average person, applying contemporary community standards, the predominant appeal of the matter or performance, taken as a whole, is to the prurient interest in nudity, sexual conduct, excretion, sexual stimulation, or sexual gratification;

(b) The matter or performance depicts or describes the nudity, sexual conduct, excretion, sexual stimulation, or sexual gratification in a patently offensive way;

and (c) The matter or performance, taken as a whole, lacks serious literary, artistic, political, or scientific value;

(24) "Obscene imagery representing minors" means a visual depiction of any kind Page 6 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 produced by any means, including but not limited to a drawing, cartoon, sculpture, or painting that:

(a) 1.

Depicts a minor engaging in sexual conduct;

and 2.

Is obscene;

or (b) 1.

Depicts an image that is or appears to be a minor engaging in graphic bestiality, sadomasochistic abuse, sexual intercourse, or deviate sexual intercourse;

and 2.

Lacks serious literary, artistic, political, or scientific value;

(25) "Park" means any area primarily intended for recreational use that is dedicated or designated by any federal, state, or local unit of government, local agency or entity, special district, or any private individual, business, or group, including any land owned, leased, reserved, or held open to the public for use as a park;

(26) "Performance" means any physical human bodily activity, whether photographic, animated, live, or recorded, that is intended for an audience of one (1) or more persons, including:

(a) Singing, dancing, speaking, acting, simulating, or pantomiming;

or (b) A play, motion picture, exhibition, or presentation;

(27) "Place of worship" means a structure where persons regularly assemble for worship, ceremonies, rituals, and education relating to a particular form of religious belief and which a reasonable person would conclude is a place of worship by reason of design, signs, or architectural features;

(28) "Playground" means any:

(a) Public park or outdoor recreational area with play equipment installed and designed to be used by children;

and (b) Outdoor recreational area with play equipment installed that is owned and operated by a charitable organization or business;

(29) "Public library" means a:

Page 7 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 (a) Library which is established as the countywide library system by any of the methods provided by KRS Chapter 173;

(b) Library established by a city of the first class under KRS 173.030;

(c) Regional library established under KRS 173.320;

(d) City library established under KRS 82.082 or other means;

and (e) County library established under KRS 67.083 or other means;

(30) "Principal place of business" with respect to an adult bookstore or video store means:

(a) At least twenty percent (20%) of the establishment's displayed merchandise consists of:

1.

Books, magazines, periodicals, or other printed matter;

or 2.

Photographs, drawings, films, motion pictures, video cassettes, compact discs, digital video or audio streams, digital video discs, slides, or other visual representations;

(b) At least twenty percent (20%) of the establishment's revenues derive from the sale or rental, for any form of consideration, of:

1.

Books, magazines, periodicals, or other printed matter;

2.

Photographs, drawings, films, motion pictures, video cassettes, compact discs, digital video or audio streams, digital video discs, slides, other visual representations;

(c) The establishment maintains either at least five hundred (500) square feet or twenty percent (20%) of its floor space for the display, viewing, sale, or rental of:

1.

Books, magazines, periodicals, or other printed matter;

or 2.

Photographs, films, motion pictures, video cassettes, compact discs, digital video or audio streams, digital video discs, slides, or other visual representations;

or Page 8 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 (d) The establishment regularly offers for display, viewing, sale, or rental at least one hundred (100):

1.

Books, magazines, periodicals, or other printed matter;

or 2.

Photographs, drawings, films, motion pictures, video cassettes, compact discs, digital video or audio streams, digital video discs, slides, or other visual presentations;

all of which are characterized by their emphasis upon the display of sexual conduct or nudity;

(31) "Recreational area or facility" means an area or facility open to the public for recreational purposes;

(32) "Residence" means a permanent dwelling place;

(33) "School" means a public or private elementary, secondary, public charter, or public or private postsecondary educational institution;

(34) "Semi-nude" means a state of dress for which clothing covers no more that the genitals, the pubic region, and a female breast below a point immediately above the top of the areola, as well as portions of the body that are covered by supporting straps or devices;

(35) "Sexual conduct" means:

(a) A sex act, actual or simulated, including an act of human masturbation, bestiality, flagellation, excretion for the purpose of sexual stimulation or gratification, sexual intercourse as defined in KRS 510.010, or deviate sexual intercourse as defined in KRS 510.010;

or (b) Fondling or other erotic touching of a human genital, pubic region, buttock, anus, or a female breast;

(36) "Stripping" means any act which involves the intentional removal or simulated removal of clothing in a sexual manner, or intentional nudity, for the entertainment of one (1) or more individuals;

and Page 9 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 (37) "Walking trail" means a pedestrian trail or path primarily used for walking but also for cycling or other activities.

SECTION 3.

A NEW SECTION OF KRS CHAPTER 231 IS CREATED TO READ AS FOLLOWS:

(1) An adult-oriented business shall not be located within one thousand (1,000) feet of a:

(a) Child-care facility;

(b) Children's amusement establishment;

(c) YMCA or YWCA facility;

(d) Youth sports facility;

(e) Public swimming pool;

(f) Park:

(g) Place of worship;

(h) Playground:

(i) Public library;

(j) Recreational area or facility;

(k) Residence;

(l) School;

or (m) Walking trail.

(2) A business that is not an adult-oriented business shall not conduct business activities that cause it to become an adult-oriented business while located within one thousand (1,000) feet of any establishment set out under subsection (1) of this section.

(3) For purposes of this section, the measurement required in subsections (1) and (2) shall be made in a straight line in all directions, without regard to intervening structures or objects, from the nearest point on the property line or a parcel containing an adult-oriented business to the nearest point on the property line of Page 10 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 a parcel containing any establishment set out under subsection (1) of this section.

(4) An adult-oriented business operating in conformity with this section shall not be in violation of this section if any establishment identified under subsection (1) of this section subsequently locates within one thousand (1000) feet of the adult- oriented business.

SECTION 4.

A NEW SECTION OF KRS CHAPTER 231 IS CREATED TO READ AS FOLLOWS:

(1) The Attorney General, a Commonwealth's attorney, a county attorney, or a resident of the county who has reason to believe that an adult-oriented business is operating in violation of Section 3 of this Act may bring a civil cause of action against the business.

The action shall be brought in the Circuit Court of the county in which the violation occurred.

(2) (a) If the court finds by a preponderance of the evidence that a violation under Section 3 of this Act has occurred, the court shall enjoin the defendant from further violations.

It shall not be required that the party seeking the relief establish irreparable harm.

(b) If the court finds by a preponderance of the evidence that the defendant knowingly, intentionally, or recklessly violated Section 3 of this Act, the court shall award to the plaintiff liquidated damages in the amount of seven thousand five hundred dollars ($7,500) for each day of the violation.

(c) If the court issues a restraining order or injunction under paragraph (a) of this subsection, and finds by a preponderance of the evidence that the enjoined defendant has knowingly, intentionally, or recklessly violated the terms of the court's order, the court shall order the defendant to pay to the plaintiff liquidated damages in the amount of fifteen thousand dollars ($15,000) for each day of the violation.

(3) Upon a finding by the court of a violation of Section 3 of this Act or a violation of Page 11 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 any injunction issued under subsection (2) of this section, the plaintiff shall be awarded actual damages, including investigation and prosecution expenses, the costs of the action, reasonable attorney's fees, and all other proper relief to which the plaintiff may be entitled.

(4) The remedies and penalties provided under this section are supplemental to those provisions of state and federal criminal and civil law which impose prohibitions or provide penalties, sanctions, or remedies against the same conduct prohibited by Section 3 of this Act or for violations of this section.

SECTION 5.

A NEW SECTION OF KRS CHAPTER 231 IS CREATED TO READ AS FOLLOWS:

(1) A commercial establishment that was lawfully established and legally operating as an adult-oriented business before the effective date of this Act may continue operating as an adult-oriented business in a location that does not conform to the requirements of Section 3 of this Act until June 30, 2025, in order to make a reasonable recoupment of its investment in the location that was made prior to the effective date of this Act.

(2) On and after July 1, 2025, a commercial establishment that was lawfully established and legally operated as an adult-oriented business before the effective date of this Act shall comply with the requirements of Section 3 of this Act.

SECTION 6.

A NEW SECTION OF KRS CHAPTER 231 IS CREATED TO READ AS FOLLOWS:

(1) A local governmental unit may continue to enforce any preexisting ordinance, resolution, or regulation, and shall retain the authority to adopt any ordinance, resolution, or regulation concerning the licensing, zoning, location, and operation of adult-oriented businesses and similar adult-oriented enterprises within the local governmental unit's jurisdiction in conformity with subsection (2) of this section.

Page 12 of 13 XXXX 2/10/2023 8:17 AM Jacketed UNOFFICIAL COPY 23 RS BR 1286 (2) Nothing in Sections 1 to 6 of this Act shall preempt any ordinance, resolution, or regulation of any local governmental unit that is at least as restrictive as the requirements established under Section 3 of this Act.

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