581.01 Purpose and findings.
581.02 Definitions.
581.03 Adult entertainment business classifications.
581.04 Adult entertainment business license required.
581.05 Adult entertainment business employee license required.
581.06 Adult entertainment business license application.
581.07 Issuance of adult business license.
581.08 Adult entertainment employee license application.
581.09 Issuance of adult entertainment employee license.
581.10 Fees.
581.11 Inspection.
581.12 Expiration and renewal of license.
581.13 Suspension.
581.14 Revocation.
581.15 Appeal rights.
581.16 Transfer of license.
581.17 Regulations pertaining to the exhibition of sexually explicit films, videos or live entertainment in viewing booths.
581.18 Additional regulations concerning the operation of adult entertainment businesses.
581.19 Restriction on location.
581.20 Severability.
581.21 Injunction.
581.99 Penalty.
CROSS REFERENCES
Obscenity and sex offenses - see GEN. OFF. Ch. 933
(a) Purpose. It is the purpose of this Chapter to regulate adult entertainment businesses in order to promote the health, safety and general welfare of the residents of the City of Berea, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of adult entertainment businesses within the City of Berea. The provisions of this Chapter do not have the purpose or effect of imposing a limitation or restriction on the content of any communicative materials, including sexually-oriented materials. Further, it is not the intent of this Chapter to restrict or deny access by adults to sexually-oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually-oriented entertainment of their intended market. Neither is the intent nor effect of this Chapter to condone or legitimize the distribution of obscene material.
(b) Findings. The Berea City Council has received substantial evidence concerning the adverse secondary effects of adult uses on a community in findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc. (1986), 475 U.S. 41; Young v. American Mini Theatres (1976) 426 U.S. 50; and Barnes v. Glen Theatre, Inc (1991) 501 U.S. 560, and on studies in other communities including but not limited to: Seattle, Washington; Phoenix, Arizona; St. Paul, Minnesota; Minneapolis, Minnesota; Tucson, Arizona; Indianapolis, Indiana; Beaumont, Texas; Oklahoma City, Oklahoma; Houston, Texas; Brook Park, Ohio and Strongsville, Ohio. The Council finds:
(1) Adult Entertainment Businesses in the City lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is presently no mechanism to make the owners of these establishments responsible for the activities that occur on their premises.
(2) Certain employees of adult entertainment businesses defined in this chapter engage in higher incident of certain types of sexually-oriented behavior at these businesses than employees of other establishments.
(3) Sexual acts, including masturbation, oral and anal sex, occur at adult entertainment businesses.
(4) Persons frequent certain adult entertainment businesses for the purpose of engaging in sex on the premises of such businesses.
(5) At least 50 communicable diseases may be spread by activities occurring in adult entertainment businesses, including, but not limited to: syphilis, gonorrhea, human immunodeficiency virus infection (HIV), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections.
(6) Since 1981 and to the present, there has been an increasing, cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States – 600 in 1982; 2,200 in 1983; 4,600 in 1984; 8,555 in 1985; and 253,448 through December 31, 1992.
(7) The number of cases of early (less than one year) syphilis in the United States reported annually has risen with 33,613 cases reported in 1982 and 45,200 through November of 1990.
(8) The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990.
(9) The surgeon general of the United States, in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, exposure to infected blood and blood components and from an infected mother to her newborn.
(10) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(11) Sanitary conditions in some adult entertainment businesses are unhealthy in part because the activities conducted there are unhealthy, and in part because of the unregulated nature of the activities and the failure of the owners and the operators of such business to self-regulate the activities and maintain the facilities.
(12) The findings noted in paragraphs (b)(1) through (11) raise substantial government concerns.
(13) Adult entertainment businesses have operational characteristics which should be reasonably regulated in order to protect those substantial government concerns.
(14) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the adult entertainment business. Further, such a licensing procedure will place a heretofore nonexistent incentive on the operators to see that the adult entertainment business is run in a manner which is consistent with the health, safety and welfare of its patrons and employees, as well as the citizens of the City. It is appropriate to require reasonable assurances that the licensee is the actual operator of the adult entertainment business and fully in possession and control of the premises and activities occurring therein.
(15) Requiring licensees of adult entertainment businesses to keep information regarding current employees and certain past employees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspects and by preventing minors from working in such establishments.
(16) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the adult entertainment business where such information is substantially related to the significant governmental interest in the operation of such uses, will aid in preventing the spread of sexually-transmitted diseases.
(17) It is desirable in the prevention of the spread of communicable diseases to obtain a limited amount of information regarding certain employees who may engage in the conduct which this chapter is designed to prevent or who are likely to be witnesses to such activity.
(18) The fact that an applicant for an adult entertainment business license has been convicted of a sexually-related crime leads to the rational assumption that the applicant is likely to engage in that conduct in contravention of this chapter.
(19) The barring of such individuals from the management of adult entertainment businesses in the City for a period of years serves as a deterrent to and prevents conduct which leads to the transmission of sexually-transmitted diseases.
(20) The general welfare, health and safety of the citizens of Berea will be promoted by the enactment of this chapter.
(Ord. 2010-26. Passed 4-5-10.)
As used in this Chapter, certain terms and words are defined as follows:
(a) "Adult Arcade" means any place to which the public is permitted or invited are either or both (i) motion picture machines, projectors, video or laser disc players or other video or image-producing devices are available, run via coin, token or any other form of consideration, to show images to five or fewer persons per machine at any one time; or (ii) live entertainment is available in a format designed for viewing by five or fewer persons at one time and where the images shown and/or live entertainment presented are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
(b) "Adult Bookstore," "Adult Novelty Store," or "Adult Video Store" means a commercial establishment which, as one its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
(1) Books, magazines, periodicals, or other printed matter, or photographs, films, motion pictures, video cassettes, video disks, CD-ROM disks, or video reproductions, slides, or other visual representations which are characterized by the depiction or description of "specified sexual activities" or specified anatomical areas"; or
(2) Instruments, devices, or paraphernalia, other than prophylactics which are designed for use in connection with "specified sexual activities."
A commercial establishment may have other principal business purposes that do not involve the offering for sale of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as adult bookstore, adult novelty store, or adult video store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore, adult novelty store, or adult video store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas." For the purpose of this Chapter, any retail establishment which devotes at least twenty percent (20%) of the total lineal feet available for the display of items or materials for sale or rental which are characterized by the depiction or description of "specified sexual activities" or specified anatomical areas" shall be categorized as an adult bookstore, adult novelty store, or adult video store.
(c) "Adult Cabaret" means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:
(1) Persons who appear in a state of nudity or semi-nudity; or
(2) Live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or
(3) Films, motion pictures, video cassettes, video discs, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."
(d) "Adult Entertainment Business" means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motion picture theater, adult theater, nude model studio or sexual encounter center. "Adult Entertainment Business" does not include an adult motel.
(e) "Adult Entertainment" means any of the services, activities, or goods provided or offered by any of the following kinds of adult entertainment businesses which as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following
(1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, video disks, CD-ROM disks, or video reproductions, slides, or other visual description of specified sexual activities or specified anatomical areas, as defined in this section; or
(2) Instruments, devices, or paraphernalia, other than prophylactics, that are designed for use in connection with specified sexual activities as defined in this section.
(f) "Adult Material" means any book, magazine, newspaper, pamphlet, poster, print, picture, slide, transparency, figure, image, description, motion picture film, phonographic record or tape, other tangible thing, or any service, display, dance, exhibition, performance, or other activity, capable of arousing interest through sight, sound, or touch, and:
(1) Which material is distinguished or characterized by an emphasis on matter displaying, describing, or representing sexual activity, masturbation, sexual excitement, nudity, bestiality, or human bodily functions of elimination; or
(2) Which service, display, exhibition, or performance is distinguished or characterized by an emphasis on sexual activity, masturbation, sexual excitement, nudity, bestiality, or human bodily functions of elimination.
(g) "Adult Motion Picture Theater" means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, video discs, slides, or similar photographic reproductions, or by various electronic media such as the internet, are regularly shown which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."
(h) “Adult Theater" means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or semi-nudity, or live performances of an erotic nature which are characterized by the exposure of "specified anatomical areas" or "specified sexual activities" including exotic dancers, strippers, male or female impersonators, or similar entertainment.
(i) "Covering" means any clothing or wearing apparel, including pasties, but does not include any substance that can be washed off the skin such as paint or make-up or any substance designed to simulate the appearance of the anatomical area beneath it.
(j) "Employee" means a person who performs any service or work on the premises of an adult entertainment business, including but not limited to providing entertainment, performing work of a management or supervisory nature or performing support functions on a full-time, part-time or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise and whether or not said person is paid a salary, wage or other compensation by the operator of said business. Employee does not include a person the premises exclusively for repair or maintenance of the premises or equipment on the premises or for the delivery of goods to the premises.
(k) “Establishment" means and includes any of the following:
(1) The opening or commencement of any adult entertainment business as a new business;
(2) The conversion of an existing business, whether or not an adult entertainment business, to any adult entertainment business;
(3) The additions or any adult entertainment business to any other existing adult entertainment business; or
(4) The relocation of any adult entertainment business.
(l) "Health Commissioner" means the Cuyahoga County Commissioner of Health or his/her authorized representative.
(m) "Licensee" means, with respect to an adult business license issued under this chapter, a person in whose name a license to operate an adult entertainment business or adult motel has been issued, as well as the individuals designated on the license application as principally responsible for the operation of the adult entertainment business. With respect to an adult entertainment employee license issued under this chapter, licensee means a person in whose name a license has been issued authorizing employment in an adult entertainment business.
(n) "Live Viewing Booth" means any private or semi-private booth or any viewing room of less than one hundred fifty (150) square feet of floor space to which the public may gain admittance, wherein a live performance is presented to five (5) or fewer persons at any one time.
(o) "Nude Model Studio" means any place where a person who appears semi-nude or who displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons who pay money or any form of consideration. Nude Model Studio shall not include:
(1) A proprietary school licensed by the State of Ohio, or a college, junior college or university supported entirely or in part by public taxation;
(2) A private college or university that offers educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation; or
(3) An establishment holding classes in a structure that has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; where in order to participate in a class a student must enroll at least three days in advance of the class; and where no more than one semi-nude model is on the premises at any one time.
(p) "Nudity" or "State of Nudity" means exposing or showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state.
(q) “Operate" means to control or hold primary responsibility for the operation of an adult entertainment business, either as a business entity, as an individual, or as part of a group of individuals with shared responsibility.
(r) "Person" means an individual, proprietorship, corporation, association, or other legal entity.
(s) "Semi-Nudity" or "Semi-Nude Condition" means the exposing or showing of the female breast below a horizontal line across the top of the areola at its highest point or the showing of the male or female buttocks. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided the areola is not exposed in whole or part.
(t) "Sexual Encounter Center" means a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
(1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(2) Activities between male and female persons and/or persons of the same sex when one or more of the persons is nude or semi-nude.
(u) "Specified Anatomical Areas" means:
(1) The human male genitals in a discernibly turgid state, even if completely and opaquely covered; or
(2) Less than completely and opaquely covered human genitals, pubic region, buttocks or female breasts below a point immediately above the top of the areola.
(v) "Specified Criminal Activity" means any of the following offenses:
(1) Prostitution or promotion of prostitution; sexual performance by a child; public lewdness; indecent exposure; indecency with a child; sexual assault; molestation of a child; or any similar offenses to those described above under the criminal or penal code of any local jurisdiction, state or country;
(2) For which;
A. Less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor offense; or
B. Less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense.
(3) The fact that a conviction is being appealed shall not prevent such conviction from constituting a specified criminal activity as defined in this section.
(w) "Specified Sexual Activities" means any of the following:
(1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
(2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy; or
(3) Excretory functions as part of or in connection with any of the activities set forth in (w)(1) through (2) of this subsection, or
(4) Acts causing human genitals to be in a state of sexual stimulation or arousal.
(x) "Substantial Enlargement" of an adult entertainment business means the increase in floor areas occupied by the business by more than twenty-five percent (25%) as the floor areas exist on the date this Chapter takes effect.
(y) "Video Booth" means any private or semi-private booth or any viewing room of less than one hundred fifty (150) square feet of floor space, to which the public may gain admittance, wherein a still or motion picture machine, projector, video monitor, or similar equipment is available for the purpose of showing still or motion pictures, videos, or similar images or photographic reproductions to five (5) or fewer persons at any one time.
(z) "Viewing Booth" means live viewing booth or video booth, and "Viewing Booths" means live viewing booths, video booths or any combination thereof.
(Ord. 2010-26. Passed 4-5-10.)
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