2006 Delaware Code - Subchapter I — Adult Book Stores and Other Adult Entertainment Establishments

§ 1601. Purpose.

(a) It is the finding of the General Assembly that the health, safety and welfare of the people of the State are imperiled by the increasing incidence of the crimes of obscenity, prostitution and of offenses related thereto. The General Assembly finds that the foregoing crimes are principally facilitated by the widespread abuse of legitimate occupations and establishments, to wit, adult entertainment establishments. It is the further finding of the General Assembly that existing criminal penalties for the foregoing offenses have been rendered ineffective by the active concealment of the identities of the individuals who create, control and promote such businesses; by the failure of these individuals and businesses to exercise adequate control and supervision over the activities of their employees; and by the active promotion of prostitution and obscenity by these individuals and businesses for their own financial gain.

(b) To the end of furthering the substantial and compelling interest of the people of this State in being free of the crimes of obscenity, prostitution and its companion offenses, and in order to promote the health, safety and welfare, the General Assembly does hereby act. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 2.)

§ 1602. Amendment of Adult Entertainment Establishment Statute.

As used in this chapter:

(1) "Adult" shall mean a person who has attained the age of 18.

(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" which 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;

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;

3. Any sexually oriented material which has a substantial portion of its contents devoted to the pictorial depiction of sadism, masochism or bestiality; 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 or appear to be under the age of 18;

b. "Adult motion picture theatres" 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;

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. "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;

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, anointing, 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, massage/bodywork practitioner, 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.

(3) "Applicant" shall mean the person in whose name or on whose behalf a license under this chapter is requested.

(4) "Beastiality" shall mean sexual activity, actual or simulated, between a human being and an animal.

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

(6) "Conviction" means a verdict of guilty by the trier of fact, whether judge or jury, or a plea of guilty or a plea of nolo contendere accepted by the court.

(7) "Licensee" shall mean the person to whom and in whose name a license is issued under this chapter.

(8) "Masochism" shall mean sexual gratification achieved by a person through, or the association of sexual activity with, submission or subjection to physical pain, suffering, humiliation, torture or death.

(9) "Massage establishments" 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, anointing, 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.

(10) "Massagist" shall mean any person who performs massage services for a massage establishment, and shall include self-employed individuals.

(11) "Partner" shall include both a general and a limited partner.

(12) "Partnership" shall include both a general and a limited partnership.

(13) "Person" means a human being who has been born and is alive, and, where appropriate, a public or private corporation, an unincorporated association, a government or a governmental instrumentality.

(14) "Principal stockholder" shall mean a person who owns equity securities of the licensee, whether voting or nonvoting, preferred or common, in any amount equal to or greater than 10 percent of the total amount of equity securities of the licensee issued and outstanding.

(15) "Peace officer" shall include police officers, the Attorney General and the Attorney General's deputies and assistants.

(16) "Sadism" shall mean sexual gratification achieved through, or the association of sexual activity with, the infliction of physical pain, suffering, humiliation, torture or death upon another person or animal.

(17) "Sexually oriented material" shall mean any book, article, magazine, publication or written matter of any kind, drawing, etching, painting, photograph, motion picture film or sound recording, which depicts sexual activity, actual or simulated, involving human beings or human beings and animals, or which exhibits uncovered human genitals or pubic region in a lewd or lascivious manner or which exhibits human male genitals in a discernibly turgid state, even if completely covered.

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

a. Human genitals in the state of sexual stimulation or arousal; or

b. Acts of human masturbation, sexual intercourse, sodomy, cunnilingus, fellatio or any excretory function, or representation thereof;

c. The fondling or erotic touching of human genitals, pubic region, buttocks or the female breasts; or

d. Less than completely opaquely covered:

1. Human genitals, pubic region;

2. Buttocks;

3. Female breasts below the top of the areola; or

4. Human male genitals in a discernable turgid state, even if completely and opaquely covered.

(19) "Treat" shall mean to administer the services provided by a massage establishment as described by this section. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, §§ 3, 4; 63 Del. Laws, c. 13, § 1; 68 Del. Laws, c. 236, § 3; 70 Del. Laws, c. 186, § 1.)

§ 1603. Commission on Adult Entertainment Establishments.

(a) The Commission on Adult Entertainment Establishments is hereby established. The Commission shall consist of 5 members who shall be appointed by the Governor and who shall be residents of this State.

(b) The Governor shall appoint the 5 members of the Commission within 30 days of the enactment of this chapter. Two members shall be appointed for 2 years and 2 members for 3 years. Upon the expiration of said terms the Governor shall appoint successors for terms of 3 years. The Chairperson shall be designated by and serve at the pleasure of the Governor. In the event that a member of the Commission for any reason cannot complete a term of office, the Governor shall appoint another person to serve for the remainder of the term. The Commission shall designate 1 of its members as Secretary-Treasurer.

(c) A person who has never served on the Board may be appointed to the Board 2 consecutive times, but no such person shall thereafter be eligible for 2 consecutive appointments. No person who has been twice appointed to the Board, or who has served on the Board for 6 years within any 9-year period, shall again be appointed to the Board until an interim period of at least 1 term has expired since such person last served.

(d) Any act or vote by a person appointed in violation of subsection (c) of this section shall be invalid. An amendment or revision of this chapter is not sufficient cause for any appointment or attempted appointment in violation of subsection (c) of this section, unless such amendment or revision amends this section to permit such an appointment.

(e) Each member of the Commission shall receive as compensation the sum of $30 per diem for each day or part thereof actually engaged in the discharge of the member's duties under this chapter, and shall be reimbursed by the State Treasurer for reasonable expenses and costs incurred in traveling to and from meetings of the Commission.

(f) Three members of the Commission shall constitute a quorum to conduct business. In the absence of the Chairperson, an acting Chairperson shall be designated by the quorum of Commissioners present. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 5; 67 Del. Laws, c. 368, § 8; 70 Del. Laws, c. 186, § 1; 75 Del. Laws, c. 320, § 1.)

§ 1604. Duties and powers of Commission.

(a) The Commission shall issue, revoke and suspend licenses for operation of adult entertainment establishments, and for the occupation of massagist in accordance with this chapter.

(b) The Commission shall meet regularly not less than 1 day per month or within 30 days, whichever comes sooner, after receipt of a completed application for a license, and shall conduct such special meetings and hearings as shall be necessary to implement this chapter.

(c) Each member of the Commission shall have the power to administer oaths, and to compel the attendance of witnesses and the production of documents and other tangible objects material to its proceedings by the issuance of subpoenas to carry out the purposes of this chapter.

(d) No findings of fact shall be made by the Commission except upon a hearing before at least 3 members, 3 of which shall concur in said finding. All findings of fact shall be written or recorded.

(e) All fees received by the Commission shall be paid over to the State Treasurer in accordance with Chapter 61 of Title 29. All expenses of the Commission, within the limits of the appropriations made to it, shall be paid by the State Treasurer upon vouchers signed by the Secretary-Treasurer of the Commission.

(f) All documents filed with the Commission and all records maintained shall become public, official and business records of the State and shall be admissible in evidence in any judicial proceeding in this State in accordance with the laws of Delaware applicable to the admissibility of such records.

(g) The Commission shall have the power to make such rules and regulations not inconsistent with the law as are necessary for their performance of its duties. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 6.)

§ 1605. Records.

(a) The Commission shall maintain separate indexes relating to the licensing of adult entertainment establishments and massagists.

(b) The Commission shall maintain an alphabetized or a computerized index containing the full name or names, including nicknames or aliases, residential address or addresses, business address or addresses, social security number, driver's license number, a picture and the identity of any banks within or without the State wherein accounts are maintained, of every applicant and licensee under this chapter. The same information shall be provided for any other person whose signature appears upon any document comprising an application for license submitted under this chapter. Said index shall be kept current and shall indicate the eligibility of such persons as licensees under this chapter, and whether the signatures of such persons on an application for license preclude the issuance of a license based thereon.

(c) In carrying out its responsibilities, the Commission may submit names of applicants and those appearing in applications to the Department of Justice for the purpose of a record check. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 7.)

§ 1606. Adult entertainment license requirement.

(a) No person shall engage in, carry on or participate in the operation of an adult entertainment establishment, or engage in the occupation of massagist without first having been issued a license therefor by the Commission.

(b) Whoever engages in the occupation of massagist in violation of this section shall be fined not more than $500 or imprisoned not more than 6 months, or both.

(c) Any person, and in the case of corporation this shall include its principal stockholders, board of directors, officers and persons engaged in the management of such establishment, who shall engage in, carry on or participate in the operation of an adult entertainment establishment in violation of this section shall be fined not more than $10,000 and imprisoned not more than 6 months, or both.

(d) Any person engaging in, carrying on or who participates in the operation of a massage establishment who is found to have upon the premises a massagist in violation of this section shall be fined not less than $2,500, which fine shall not be subject to suspension, nor more than $10,000. For the purposes of this subsection, neither arrest, prosecution nor conviction of a massagist for violation of this section shall be necessary in order for liability to attach.

(e) A certificate, certified by a member of the Commission, that a diligent search of the Commission's records, those pertaining to licenses kept in conformity with this chapter, has failed to disclose the existence of a valid license for an adult entertainment establishment in question shall be prima facie evidence of a violation of this section. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, §§ 8-10.)

§ 1607. License fee; term.

(a) No license to engage in the occupation of a massagist under this chapter, or renewal thereof, shall be issued unless the applicant shall have paid the nonrefundable application fee as provided in § 1612 of this title.

(b) No license for the operation of any adult entertainment establishment under this chapter, nor renewal thereof, shall be issued unless the applicant shall have paid the nonrefundable application fee as provided in § 1613 of this title.

(c) Nothing in this chapter, however, shall be construed to affect or impair in any manner the requirements of Title 30.

(d) Each license granted pursuant to this chapter shall be for a period of 1 year and may only be renewed by making a new application in the manner provided in this chapter. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 11; 63 Del. Laws, c. 284, § 1.)

§ 1608. Transferability of license.

(a) Each license issued under this chapter shall be for the sole use and benefit of the licensee to whom it is issued and shall not be transferable.

(b) Whoever intentionally uses or permits the use, or attempts to use or permit the use of a license issued under this chapter by or on behalf of a person other than the licensee to whom said license shall be issued shall be fined not more than $500, or imprisoned for not more than 6 months, or both. (61 Del. Laws, c. 122, § 1.)

§ 1609. Form and content of license.

(a) Every license issued under this chapter shall be signed by the signature or by the facsimile signature of the Secretary-Treasurer of the Commission, shall bear in bold letters the date of issuance and termination and shall state the name and address of the licensee.

(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 § 1602(2) of this title, 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.

(c) Every license issued to a massagist shall bear the photograph of the licensee. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 12.)

§ 1610. License tied to physical location; prohibited activities.

(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 the location of the licensee's place of business during the period for which the license was issued, the license shall be amended by making application in accordance with this chapter 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.

(b) Any person, and in the case of a corporation this shall include its principal stockholders, board of directors, officers and persons engaged in the management of such establishment, who is the holder of a license issued under this chapter and who engages in, carries on or participates in the operation of the business of operating a massage establishment or an adult book store at a place other than that authorized by said license shall be fined not more than $500, or imprisoned for not more than 6 months, or both.

(c) No new adult entertainment establishment as defined in § 1602 of this title shall operate in the same building or in separate buildings less than 1,500 feet from each other, within 500 feet of any residence regardless of how such property is zoned, or within 2,800 feet from a church or school. Violations of this subsection shall be punishable by a fine in the amount of $5,000. Distances shall be measured from property line to property line.

(d) Notwithstanding any provision of law to the contrary, no municipal corporation or county may adopt any ordinance or charter amendment with distance restrictions less than those provided in this section. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 13; 63 Del. Laws, c. 284, §§ 2, 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 452, § 1.)

§ 1611. Display of license.

(a) Every person licensed to operate an adult entertainment establishment under this chapter shall display each license in a conspicuous manner on the premises for which the license shall have been issued.

(b) Every massagist licensed under this chapter shall have in the massagist's possession during the course of performance of services as a massagist, and while on the premises of a massage establishment, and shall display upon request of a peace officer, the license issued under this chapter.

(c) Violation of this section shall be punished by a fine of not more than $1,000. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 14; 70 Del. Laws, c. 186, § 1.)

§ 1612. Massagist license application.

(a) No license to engage in the occupation of massagist shall be issued under this chapter unless the applicant has executed and filed with the Commission an application for license which shall include:

(1) Except as otherwise provided for in this chapter, no person may be licensed as a massagist under this chapter unless such person shall pay the fee as provided for and have an education equivalent to the completion of the 12th grade, shall have passed the appropriate examination and completed a course in the occupation of massagist, consisting of all or the majority of practical theory in a school of massagist, of at least 1,000 hours of continuous training, not to exceed more than 8 hours in any 1 day;

(2) The applicant's full name(s), including nicknames or aliases, 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 30 days of application;

(3) The applicant's sworn statement that the applicant has never been convicted of any of the following offenses: Lewdness, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other state or jurisdiction within 3 years of the date of application;

(4) A letter or certification of a physician stating that the applicant has been examined and found free of communicable diseases as of a date not more than 30 days prior to submission of the application; and

(5) A copy of the applicant's fingerprints on a Delaware State Police fingerprint card.

(b) Every application for a license to engage in the occupation of a massagist, or for renewal thereof, shall be accompanied by a nonrefundable fee in the amount of $25. (61 Del. Laws, c. 122, § 1; 63 Del. Laws, c. 284, § 4; 64 Del. Laws, c. 416, § 1; 70 Del. Laws, c. 186, § 1.)

§ 1613. Adult entertainment establishment license application.

(a) No license for the operation of an adult entertainment establishment shall be issued under this chapter unless the applicant has executed and filed with the Commission an application for license under oath on a form prepared by the Commission which is in compliance with this chapter.

(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 § 1615 of this title, including nickname(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, a photograph of the applicant taken within 30 days of the application, federal employer's 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 30 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.

(c) Where the applicant is a corporation, no license shall be issued unless there first be filed with the Commission, as part of the application of license:

(1) A copy of the certificate of incorporation certified by the Secretary of State of the state of incorporation;

(2) Where the applicant is a foreign corporation within the meaning of § 371 of Title 8, a copy of the certificate of the Secretary of State prescribed by subsection (c) of that section;

(3) A certificate which shall bear the full name(s), including nicknames or aliases, place(s) of employment, including address(es) and phone number(s), social security number, date of birth, driver's license number and a photograph taken within 30 days of application of every director, officer and principal stockholder of the applicant, and each such signature shall be separately witnessed and acknowledged by a notary public of the district of execution; and

(4) The names and addresses of all holders of stock of the applicant as of a date 30 days or less prior to the date of application, which shall be certified as true and correct by an authorized director or officer of said corporation.

(d) Where the applicant is a partnership or other unincorporated association, no license shall be issued unless there is first filed with the Commission, as part of the application for license, a certificate which shall bear the full name(s), including nicknames or aliases, signature(s), place(s) of employment, including address(es) and phone number(s), social security number, date of birth, driver's license number and a photograph taken within 30 days of application of every partner or member, and each such signature shall be separately witnessed and acknowledged by a notary public of the district of execution.

(e) An application for license for the operation of an adult entertainment establishment shall include a certificate stating the full name(s), including nicknames or aliases, signature(s), residential address(es), place(s) of employment, including address(es) and phone number(s), date of birth, social security number, driver's license number and a photograph taken within 30 days of application of the person or persons who shall be responsible for the selection or procurement of all sexually oriented material for each such establishment and each such signature shall be separately witnessed and acknowledged by a notary public of the district of execution. This subsection shall not be construed to preclude the responsibility of any other person or persons for the procurement of sexually oriented materials.

(f) Every application for a license for the operation of an adult entertainment establishment, or for renewal thereof, shall be accompanied by a nonrefundable fee in the amount of $100 plus a fee of $25 for each separate branch or business location.

(g) No application for a license to operate an adult entertainment establishment shall be received by the Commission within 6 months following the date upon which an application to operate an adult entertainment establishment at the same location has been denied. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, §§ 15-17; 63 Del. Laws, c. 284, § 5; 71 Del. Laws, c. 469, § 1.)

§ 1614. Form of signature.

No signature of an applicant or licensee, or of any director, officer, principal stockholder or employee of an applicant or licensee, or of any partner associated with an applicant or licensee, which is required to be affixed to any document filed under this chapter, shall be a facsimile signature. (61 Del. Laws, c. 122, § 1.)

§ 1615. Personal appearance required.

(a) No license shall be issued under this chapter except upon personal appearance of the applicant before a member of the Commission. The applicant shall affix the applicant's signature and Social Security number to the application for license in said member's presence and shall acknowledge under oath that said application for license is the applicant's act and deed and that the facts stated therein are true.

(b) Where the applicant is a corporation, subsection (a) of this section shall be satisfied by the appearance, signature and Social Security number of a director on behalf of the corporation in the same manner. Where the applicant is a partnership or other unincorporated association, subsection (a) of this section shall be satisfied by the appearance, signature and Social Security number of a general partner or member on behalf of the applicant. (61 Del. Laws, c. 122, § 1; 70 Del. Laws, c. 186, § 1.)

§ 1616. Grounds for denial of license.

(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.

(b) No license to engage in the occupation of massagist shall be issued to any person convicted of any of the following offenses: Lewdness, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other state or jurisdiction within 3 years of the date of application.

(c) No license for the operation of a massage establishment shall be issued under this chapter:

(1) To any person convicted within 3 years of the date of application of any of the following offenses: Lewdness, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other state or jurisdiction;

(2) To any person who formerly held a license for the operation of a massage establishment under this chapter, which license was revoked pursuant to § 1617 of this title, for 2 years following revocation;

(3) To any person who was an officer, director or principal stockholder of a corporation, or a partner or member of a partnership or other unincorporated association, which was licensed as a massage establishment and which license was revoked pursuant to § 1617 of this title for an offense or violation committed by anyone while said person served in that capacity, for 2 years following revocation;

(4) To any person on the basis of an application of license which bears the signature of any person specified in paragraph (1) of this subsection; who has been convicted within 3 years of the date of application of any of the crimes set forth in paragraph (1) of this subsection; or

(5) To any person on the basis of an application for license which bears the signature of any person specified in paragraph (2) or (3) of this subsection, for 2 years following revocation. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 18.)

§ 1617. Grounds for refusal to issue a license; suspension; revocation.

(a) The Commission shall refuse to issue a license to any applicant, and shall revoke any license for the operation of an adult entertainment establishment other than a massage establishment, for any of the following reasons:

(1) An intentional misrepresentation or omission of any material fact required to be filed pursuant to this chapter;

(2) A transfer of a license in violation of § 1608(a) or § 1610(a) of this title; or the failure to comply with § 1622 or § 1623 of this title;

(3) A conviction of the licensee for any of the following offenses, including conspiracy to commit any of the following offenses: Lewdness, tax evasion, obscenity, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other state or jurisdiction;

(4) A conviction of any director, officer, principal stockholder, manager, procurer, employee or independent contractor of the licensee or of a partner associated with the licensee for any of the following offenses, including conspiracy to commit any of the following offenses: Lewdness, tax evasion, obscenity, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other state or jurisdiction, occurring on the licensed premises; or

(5) A conviction of any director, officer, principal stockholder, manager, procurer, employee or independent contractor of the licensee, or of a partner associated with the licensee, for any of the following offenses, including conspiracy to commit any of the following offenses: Lewdness, tax evasion, obscenity, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other jurisdiction, not occurring on licensed premises, where said director, officer, principal stockholder, manager, procurer, employee or independent contractor, at the time of the conduct constituting the offense, was off the premises at the request or direction or pursuant to the authority of the licensee for the purpose of furthering the business of the licensee.

(b) The person or persons responsible for any intentional misrepresentation or omission of any material fact required to be filed pursuant to this chapter shall be fined $1,000, imprisoned for 30 days, or both. For the purpose of this subsection, a fact is deemed "material" when it could have affected the decision as to whether to grant or deny an application for license.

(c) A license to engage in the occupation of massagist shall be revoked for a period of 2 years upon the conviction of the licensee for any of the following offenses, including conspiracy to commit any of the following offenses: Lewdness, prostitution, promoting prostitution, sexual assault, sexual misconduct, indecent exposure, incest, rape or sodomy, in this State or any other state or jurisdiction.

(d) The license for the operation of an adult entertainment establishment other than a massage establishment may be suspended by the Commission, for a period not to exceed 6 months, for any violation of this chapter not otherwise punishable by subsection (a) of this section, or § 1616 of this title. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 19; 63 Del. Laws, c. 285, §§ 1, 2; 68 Del. Laws, c. 133, §§ 3, 4; 68 Del. Laws, c. 158, §§ 1, 2; 72 Del. Laws, c. 452, § 2.)

§ 1618. Suspension of license to operate massage establishment or act as massagist; regulations imposing sanctions.

(a) A license for the operation of a massage establishment shall be suspended for a period of 60 days upon conviction of the licensee for a violation of § 1620 of this title.

(b) A license to engage in the occupation of massagist shall be suspended for a period of 2 years upon conviction of the licensee for a violation of § 1620 of this title.

(c) Notwithstanding anything in § 1617 of this title to the contrary, the Commission may adopt regulations imposing sanctions for violations of any provision of this chapter. Such sanctions may include fines or suspension of license to operate an adult entertainment establishment. The sanctions so adopted may be imposed in lieu of or in addition to license revocation.

(d) The Commission may adopt regulations requiring a licensee to post a bond with surety of $10,000 for the collection of any fines imposed pursuant to regulations promulgated under subsection (c) of this section. In the event that the Commission requires the posting of a bond with surety, the bond shall be executed and proof of its execution shall be demonstrated to the Commission prior to the issuance of a license or renewal thereof. (61 Del. Laws, c. 122, § 1; 63 Del. Laws, c. 285, § 3.)

§ 1619. Hearings.

(a) The Commission shall not suspend or revoke any license under this chapter except after a hearing where the licensee has been given at least 20 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 § 1616 of this title shall be at such time and place as the Commission shall prescribe, but no later than 20 days after the Commission is in receipt of a completed application or 20 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.

(c) Hearings shall be before a panel of no less than 3 Commissioners and the applicant or licensee shall be permitted the assistance of counsel at the applicant's or licensee's own expense, to present witnesses in the applicant's or licensee's own behalf and to cross-examine witnesses against the applicant or licensee. The proceedings shall be recorded either electronically or stenographically. The Commission shall make specific findings of fact based upon a preponderance of the evidence upon the concurring vote of no fewer than 3 Commissioners. The Commission shall give written notice, accompanied by its findings of fact and conclusions of law, of its action within 10 days of said hearing.

(d) The applicant or licensee shall have the right of appeal to the Superior Court upon filing notice of appeal within 20 days of the decision of the Commission. Such review shall be on the record and shall not be de novo, and the cost of transportation shall be borne by the appellant. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 20; 70 Del. Laws, c. 186, § 1.)

§ 1620. Prohibited massage establishment acts.

(a) No massage establishment shall:

(1) Permit a massagist in its employ to treat a patron while pubic area, buttocks or female breasts of either massagist or patron are not fully covered; or

(2) Permit a massagist in its employ to treat the genitals of a patron.

(b) No massage establishment shall be located on the premises or have an adjoining door to an establishment that sells alcoholic beverages.

(c) A violation of this section by either a massage establishment or a massagist shall be punished by a fine in the amount of $1,000 or by imprisonment for not more than 30 days, or both. (61 Del. Laws, c. 122, § 1; 64 Del. Laws, c. 416, § 2.)

§ 1621. Records; inspection of records.

(a) Every massage establishment which is licensed under this chapter shall maintain on the premises and keep current a record of all massagists in its employ, a record of all massagists who have been employed after the effective date of this chapter and a record containing the names and addresses of all customers, the date of attendance and the name of the massagist.

(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.

(c) All records which are required to be maintained pursuant to this section shall be subject to inspection on demand by any peace officer or by the Commission or any member thereof.

(d) Violation of this section shall be punished by a fine of not more than $200 or by imprisonment for not more than 6 months, or both. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 21.)

§ 1622. Change of management of adult entertainment establishment.

(a) An adult entertainment establishment shall notify the Commission in writing within 10 days of any change, containing the full name(s), including nicknames or aliases, 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 taken within 30 days of notification, of any change in the identity of the persons identified pursuant to § 1613(b) and (e) of this title.

(b) A violation of this section shall be punishable by a fine in the amount of $1,000. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 413, § 22.)

§ 1623. Applicability of chapter.

This chapter, except as provided in § 1607(c) of this title, shall apply with equal force and effect to businesses and enterprises in existence prior to the effective date of this chapter and to those undertaken thereafter. The information required of all applicants hereunder shall be supplied to the Commission by any business subject to this chapter previously licensed pursuant to § 2905 of Title 30 within 20 days after the effective date of this chapter if such business has more than 90 days remaining on its then existing license. (61 Del. Laws, c. 122, § 1.)

§ 1624. Inspections of massage establishments.

The premises at which the business of a massage establishment is carried on shall be subject to periodic inspection by the Department of Health and Social Services, upon reasonable notice to said establishment, for the prevention of the spread of communicable diseases. (61 Del. Laws, c. 122, § 1; 70 Del. Laws, c. 149, § 210.)

§ 1625. Rules and prohibitions relating to adult entertainment establishments.

(a) No adult entertainment establishment shall be established in a shopping area containing 1 or more parcels of land owned by a common owner or owners and having in such area 4 or more retail stores.

(b) No adult entertainment establishment shall open to do business before 10:00 a.m., Monday through Saturday; and no adult entertainment establishment shall remain open after 10:00 p.m., Monday through Saturday. No adult entertainment establishment shall be open for business on any Sunday or a legal holiday as designated in § 501 of Title 1. This subsection shall not apply to any business which, on or before January 1, 1997, was regulated under both this chapter and Title 4, and which is not an adult book store, conversation parlor or adult motion picture theater as the same are defined in this chapter. (62 Del. Laws, c. 270, § 2; 63 Del. Laws, c. 69, § 1; 68 Del. Laws, c. 133, §§ 1, 2; 69 Del. Laws, c. 19, § 1; 71 Del. Laws, c. 160, § 1.)

§ 1626. Offenses.

Unless otherwise provided, all violations of this chapter are misdemeanors. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 270, § 1.)

§ 1627. Jurisdiction.

Exclusive jurisdiction for all criminal violations of this chapter shall be in the Superior Court. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 270, § 1.)

§ 1628. Words of gender or number.

Unless the context otherwise requires, words denoting the singular number may, and where necessary, shall be construed as denoting the plural number, and words denoting the plural number may, and where necessary, shall be construed as denoting the singular number, and words denoting the masculine gender may, and where necessary, shall be construed as denoting the feminine gender or the neuter gender. (61 Del. Laws, c. 122, § 1; 62 Del. Laws, c. 270, § 1.)

§ 1629. Presence of minors prohibited; penalties.

(a) It shall be unlawful for an owner, manager, operator, procurer, employee or independent contractor of an adult entertainment or massage establishment to knowingly admit or allow to remain on the premises of such establishment an individual under the age of 18 years.

(b) Any person who violates this section shall be fined in the amount of $1,000 for the first conviction, and in the amount of $5,000 for each subsequent conviction.

(c) It shall be an affirmative defense to a prosecution under this section that the minor presented to the accused identification, with a photograph of such minor affixed thereon, which identification sets forth information which would lead a reasonable person to believe such individual was 18 years of age or older. (63 Del. Laws, c. 284, § 6.)