CHAPTER 134

FORMERLY

SENATE BILL NO. 164

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND TITLE 16 AND TITLE 24 OF THE DELAWARE CODE RELATING TO CERTAIN ADULT ENTERTAINMENT ESTABLISHMENTS; AND PROVIDING FOR THE PREVENTION AND CONTROL OF CERTAIN SEXUALLY-RELATED COMMUNICABLE DISEASES.

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

Section 1. Amend Chapter 16, Title 24 of the Delaware Code by

redesignating all of the present chapter as new Subchapter I, which shall be entitled as follows:

"SUBCHAPTER I. ADULT BOOK STORES AND OTHER ADULT ENTERTAINMENT ESTABLISHMENTS"

and by adding thereto a new subchapter, designated as Subchapter II, which new subchapter shall read as follows:

"SUBCHAPTER II. ADULT ENTERTAINMENT ESTABLISHMENTS; PUBLIC NUISANCES

§1631. Statement of Purpose: findings

(a) It is hereby found that there are certain commercial premises, buildings, structures, or parts thereof which, by reason of the design and use of such premises, buildings or structures are conducive to the spread of communicable disease to persons frequenting such premises, buildings and structures; and also to the public health, safety and welfare. The General Assembly declares that the health, safety and welfare of all persons in this State should be protected through the application and enforcement of standards regulating such premises, buildings and structures, in order to eliminate the possibility of the spread of, or infection by, communicable diseases.

(b) The sexually transmittable disease of Acquired Immune Deficiency Syndrome, currently found to be irreversible and uniformly fatal, is found to be of particular danger to persons who frequent adult entertainment establishments or other premises, when they are in violation of State law. A high incidence of this and other communicable diseases is found to occur

in discernable population groups. The risk factors for obtaining or

spreading A.I.D.S. are associated with high-risk sexual conduct. The

commercial premises, buildings and structures where persons might place themselves at risk of infection from this disease, or from any other communicable disease facilitated by high-risk sexual conduct, should as public policy be regulated; and standards for the prevention of the spread of these communicable diseases should be established for the protection of the public health, safety and welfare.

§1632. Refliations.

The following words, terms and phrases, when used in this Chapter, shall have the meanings ascribed to them in this Section, except where the context clearly indicates a different meaning:

(a) "Booths, stalls, or partitioned portions of a room or

individual rooms" shall mean:

(1) enclosures specifically offered to persons for a fee, or as an incident to performing high-risk sexual conduct; or

(2) enclosures which are part of a business operated on the premises, which offers movies or other entertainment to be viewed within such enclosure, including enclosures wherein movies or other entertainment is dispensed for a fee.

(3) The words "booths, stalls, or partitioned portions of a room or individual rooms" shall not mean enclosures which are private offices used by an owner, manager, or other person employed on the premises for attending to the tasks of such person's employment, and which office or enclosure is not held out for use or hire to the public for the purpose of viewing movies or other entertainment for a fee; and which are not open to any persons other than employees.

(b) "Doors, curtains or portal partitions" shall mean full,

complete, non-transparent closure devices constructed so that one outside cannot see or view activity taking place within the enclosure.

(c) "Hazardous site shall mean any commercial premises, building, structure, or any part thereof, which is a site of high-risk sexual conduct.

(d) "High-risk sexual conduct" shall mean:

(1) fellatio;

(1) anal intercourse; and/or

(1) vaginal intercourse with persons who engage in sexual acts for exchange of money.

(e) "Open to an adjacent public room so that the area inside is visible to persons in such adjacent room" shall mean either:

(1) the absence of any door, curtain or portal partition; or

(2) a door or other device which is made of clear, transparent material such as glass, plexiglass or other similar material meeting building code and safety standards, which permits the activity inside the enclosure to be viewed or seen by persons outside the enclosure.

(f) "Secretary" shall mean the Secretary of the Department of

Health and Social Services.

§1633. Building Standards

(a) No commercial building, structure, premises, part thereof, or

facilities therein, shall be so constructed, used, designed or operated for the purpose of engaging in, or permitting persons to engage in, sexual activittes which include high-risk sexual conduct.

(b) No person shall own, operate, manage, rent, lease or exercise

control over any commercial building, structure, premises, or portion or part thereof, which contains:

(1) partitions between subdivisions of a room, portion or part of a building, structure or premises having an aperture which is designed or constructed to facilitate sexual activity between persons on either side of the partition; or

(1) booths, stalls, or partitioned portions of a room, or
individual rooms, used for the viewing of motion pictures or other forms of entertainment, having doors, curtains or portal partitions, unless such booths, stalls, partitioned portions of a room, or individual rooms so used shall have at least one side open to an adjacent public room so that the area inside is visible to persons in adjacent public rooms. Such areas shall be lighted in a manner that
the persons in the areas used for viewing motion pictures or other forms of entertainment are visible from the adjacent public rooms, but such lighting shall not be of such intensity as to prevent the viewing of the motion pictures or other offered entertainment,

(c) The standards set forth in this section shall not apply to

buildings, structures and premises which are lawfully operating as hotels, motels, apartment complexes, condominiums or rooming houses.

§1634. Department of Health dnd Social Services

(a) The Department of Health and Social Services shall administer this subchapter and may adopt rules and regulations to facilitate its administration of this subchapter. In exercising the powers conferred by this or any other section of the Delaware Code or of this Chapter relating to sexually-related communicable diseases, the Department shall be guided by the most recent instructions, opinions and guidelines of the Center for Disease Control of the United States Department of Health and Human Services as the same relate to the spread of infectious diseases. Any rules or regulations which are adopted by the Department which relate to controlling the spread of sexually-related communicable diseases shall also apply in the exercising its powers authorized under this subchapter.

(b) In order to ascertain the source of certain infections, and reduce the spread of infection, the Secretary and all persons so authorized by the Secretary, shall have full power and authority to inspect or cause to be inspected, and to issue orders regarding any commercial building, structure, premises, or any part thereof, which may be a site of high-risk sexual conduct. If the Secretary determines that a hazardous site exists, the Secretary May:

(1) notify the management, owner or tenant of the premises that the Secretary has reasonable belief that such premises, building or structure is a hazardous site; and

(2) issue warnings to the management, owner or tenant of the premises to remedy those items cited or listed by the Secretary's notice; and

(3) once such notice and warnings have been issued, the Secretary, or any person designated by the Secretary, shall have the right to proceed in accordance with §1635.

§1635. Closure of Certain Public Nuisances

(a) After the Secretary has issued the notice and warning described in §1634, the management, owner or tenant shall have ten days to request a hearing before the Secretary or a hearing officer appointed by the Secretary, for a final determination as to whether or not the site is a hazardous site. If the management, owner or tenant of the premises does not, within ten days of the notice, request a hearing, the Secretary shall then cause the premises to be posted with a warning advising the public that the premises have been declared a hazardous site. The Secretary shall then issue an order to the management, owner or tenant of such premises to take measures to bring the premises into compliance with §1633 of this Chapter.

(b) If the management, owner or tenant of the premises requests a hearing, the hearing shall be held before the Secretary or a hearing officer approved by the Secretary at a date not more than thirty days after such request for a hearing. After considering all evidence, the Secretary or the hearing officer, as the case may 'be, shall make a determination as to whether or not the premises constitute a hazardous site. If the Secretary or hearing officer makes a determination that the premises constitute a hazardous site, the Secretary shall then issue an order and cause the premises, building or structure to be posted with a warning advising the public that the premises have been declared a hazardous site.

(c) If, after thirty days from issuance of the Secretary's order to the management, owner or tenant of the hazardous site, the Secretary determines that the measures to bring the premises into compliance, and to prevent high-risk sexual conduct have not been undertaken, the Secretary may declare the site to be a public nuisance, and:

(1) order the abatement of the hazardous site as a public
nuisance, which order shall be enforced by mandatory or prohibitory injunction in a, court of competent jurisdiction; and/or

(1) may secure a court order for the closure of the premises constituting a hazardous site until the premises, building, or structure is in compliance with the standards set forth in §1633, or

(3) may, in compliance, with §310, Title 16 of the Delaware Code, take such steps as are set forth therein for the abatement of a nuisance."

(d) The management, owner or tenant may, within 30 days of the

Secretary's order, apply to the Superior Court for a civil trial de novo of any finding or findings made by the Secretary or hearing officer; and of any charges brought against said management, owner or tenant.

Section 2. Amend §310, Chapter 3, Title 16 of the Delaware Code by adding to said section a new subsection, designated as subsection (c), which new subsection shall read as follows:

"(c) Where the Secretary of Health and Social Services determines, in accordance with Chapter 16, Title 24 of the Delaware Code, that a public nuisance exists, the Secretary shall have all the powers granted by this Chapter to local boards of health. The Secretary may also apply to a court under §311, §312 and any other sections of this Chapter to enter the premise and remove health hazards, and to do any other act permitted a local board of health, so long as such act is consonant with the provisions and intent of said Chapter 16, Title 24 of the Delaware Code."

Approved July 9, 1991.