§ 110.061  DEFINITIONS.
   For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
   SEXUALLY ORIENTED BUSINESS.  An adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center. The following definitions shall apply to SEXUALLY ORIENTED BUSINESSES:
      (1)   ADULT ARCADE.  Any place to which the public is permitted or invited wherein cash-operated, credit-operated, coin-operated or slug-operated or electronically, internet or mechanically controlled still or motion picture machines, projectors or other image producing devices are maintained to show images and where the images so displayed are distinguished or characterized by the depicting or describing of “sexually explicit activities” or “specified anatomical areas”.
      (2)   ADULT BOOKSTORE or ADULT VIDEO STORE.  An establishment which offers for sale or rental for any form of consideration, as one of its principal business purposes, any one or more of the following:
         (a)   Books, computer diskettes, tapes or hard drives, magazines, periodicals or other printed matter or photographs, films, motion pictures, video matter or photographs, cassettes or video reproductions, slides or other visual representation and/or items which depict or describe “sexually explicit activities” or “specified anatomical areas” or which are characterized by their emphasis upon exhibition or description of “sexually explicit activities” or “specified anatomical areas”; or
         (b)   Instruments, devices or paraphernalia which are characterized by their emphasis upon “sexually explicit activities” or “specified anatomical areas” or designed for use in connection with “sexually explicit activities”; or
         (c)   Items, materials or paraphernalia depicting, displaying, advertising or packaged as “sexually explicit activities” or which depict or describe, or are characterized by their emphasis upon, the exhibition or description of “specified anatomical areas”.
         (d)   For purposes of this subchapter, PRINCIPAL BUSINESS PURPOSE means:
            1.   The devotion of a significant or substantial portion of its stock-in-trade or interior floor space, meaning 30% or more of the interior floor area as defined by the applicable Building
Code; or
            2.   The receipt of 50% or more of its annual revenues from the sale of the items listed above. Revenue is a gross increase in assets or a gross decrease in liabilities recognized and measured in conformity with generally accepted accounting principles; or
            3.   The devotion of a significant or substantial portion of its advertising expenditures to the promotion of the sale, rental or viewing of books, magazines, periodicals or other printed matter, or photographs, film, motion pictures, video cassettes, compact discs, slides or other visual representations, items, materials, or paraphernalia which are characterized by the depiction, description, display, advertising or packaging of “sexually explicit activities” or “specified anatomical areas”.
            4.   An establishment may have other PRINCIPAL BUSINESS PURPOSES that do not involve the offering for sale, rental or viewing of materials depicting or describing “sexually explicit activities” or “specified anatomical areas”, and still be characterized as an adult book store, adult novelty or retail store or adult video store. Such other business purposes will not serve to exempt such establishment from being categorized as an adult bookstore, adult novelty store, adult video store, so long as the establishment falls within the definition of an adult bookstore, adult novelty store or adult video store as set forth above.
      (3)   ADULT CABARET.  A nightclub, bar, restaurant or similar commercial establishment, whether or not alcohol is served, which regularly features:
         (a)   Persons who appear in a state of restricted nudity, and/or other material while opaque does not completely cover the entire buttocks (e.g., g-strings) or all portions of the breast below the topmost portion of the areola; or
         (b)   Live performances of an erotic nature which are characterized by the partial exposure of “specified anatomical areas” or “sexually explicit activities” that occur away from the common area of the establishment, such as on a stage, on poles, in booths, cubicles, rooms, compartments or stalls separate from the common areas of the premises wherein an entertainer or waitress provides adult entertainment to members of the public, a patron or a member, when such adult entertainment is held, conducted, operated or maintained for a direct or indirect profit; or
         (c)   Films, motion pictures, video cassettes, compact discs, slides or other photographic reproductions which are characterized by the depiction or description of “sexually explicit activities” or “specified anatomical areas”.
      (4)   ADULT MASSAGE PARLOR.  Any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other manipulation of the human body which occurs as part of or in connection with specified sexual activities, or where any person providing such treatment, manipulation, or service related thereto, exposes his or her specified anatomical areas. The definition of sexually oriented business shall not include the practice of massage in any licensed hospital, nor by a licensed chiropractor or osteopath, nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor or osteopath, nor by trainers for any amateur, semi-professional or professional athlete or athletic team or school athletic program nor a therapeutic massage practitioner. An ADULT MASSAGE PARLOR is considered a sexually oriented business for purposes of this subchapter.
      (5)   ADULT MOTEL.  A hotel, motel or similar establishment which:
         (a)   Offers accommodations to the public for any form of consideration and provides patrons with closed-circuit television transmission, films, motion pictures, video cassettes, compact discs, slides or other photographic reproductions which are regularly characterized by the depiction or description of “sexually explicit activities” or “specified anatomical areas”; and which advertises the availability of this adult type of material by means of a sign, visible from the public right-of-way, or by means of any off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio, internet or television; or
         (b)   Permits patrons to be filmed or photographed performing “sexually explicit activities” or displaying “specified anatomical areas” for electric transmission over the World Wide Web; or
         (c)   Offers a sleeping room for rent for a period of time that is less than ten hours; or
         (d)   Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten hours.
      (6)   ADULT MOTION PICTURE THEATER.  An establishment where, for any form of consideration, films, motion pictures, video cassettes, compact discs, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of “sexually explicit activities” or “specified anatomical areas”.
      (7)   ADULT THEATER.  A theater, concert hall, auditorium or similar establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of “specified anatomical areas” or by the performance of “sexually explicit activities”. This definition does not include a theater which features occasional live nude performances with serious literary, artistic or political value and which has no adverse secondary effects.
      (8)   ADULT USE BUSINESS.  An adult arcade, adult bookstore, adult novelty or retail store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude modeling studio and/or a sexual encounter establishment or any business determined by the Building Official, Village Manager, and/or the Chief of Police, to be an adult use because of the similarities in the characteristics and activities of the business with regulated adult business uses, such as nudity, semi-nudity, exposure of “sexually explicit activities” and/or “specified anatomical areas”. The definition of ADULT USE BUSINESS shall not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state engages in medically approved and recognized sexual therapy.
      (9)   ALCOHOLIC COMMERCIAL ESTABLISHMENT.  Any hotel, motel, tavern, restaurant, park, nightclub, cocktail lounge, burlesque house, bar, cabaret, taproom, club or other similar establishment licensed by the State of Michigan Liquor Control Commission, or where alcoholic beverages, including beer, are dispensed and/or consumed. This definition shall exclude a theater or auditorium.
      (10)   ENTERTAINER.  A person who performs some type of activity or pose with the intent of allowing others to witness that activity or pose.
      (11)   ESCORT.  A person who, for consideration in any form, agrees or offers to act as a companion, guide or date for another person, or who agrees or offers to privately perform as an entertainer, including, but not limited to, the modeling of lingerie, the removal of clothing and the performance of a dance or skit. Under this definition, PRIVATELY shall mean a performance for an individual or that individual’s guests.
      (12)   ESCORT AGENCY.  A person or business association that furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip or other consideration.
      (13)   ESTABLISHMENT. Any of the following:
         (a)   The opening or commencement of any sexually oriented business as a new business; or
         (b)   The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; or
         (c)   The location or relocation of any sexually oriented business.
      (14)   LICENSEE.  The individual listed as an applicant on the application of a sexually oriented business license, or a person whose name appears on a license to operate an adult use business.
      (15)   LICENSING OFFICER.  The Clerk of the Village of Birch Run or his/her designee.
      (16)   MANAGER.  An operator, other than a licensee, who is employed by a sexually oriented business to act as a manager or supervisor of employees, or is otherwise responsible for the operation of the sexually oriented business.
      (17)   MASSAGE.  The treating of external parts of the body for remedial or hygienic purposes, consisting of stroking, kneading, rubbing, tapping, pounding, vibrating, or stimulating with the hands or with the aid of any mechanical or electrical apparatus or appliances, with or without such supplementary aids as rubbing alcohol, liniments, antiseptics, oils, powder, creams, lotions, ointment or other such similar preparations commonly used in the practice of massage, under such circumstances that it is reasonably expected that the person to whom the treatment is provided shall pay any consideration whatsoever therefore. For purposes of this subchapter, the term BODYWORK shall mean massage.
      (18)   NUDE MODEL STUDIO.  Any place where a person appears in a state of nudity or displays “specific anatomical areas”, and is provided money or any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by other persons. This includes modeling studios that provide for nude modeling on an occasional basis, but it does not include a modeling studio whose primary function is to provide art classes as part of a college, university or educational institution and which is certified by the State of Michigan.
      (19)   NUDITY or A STATE OF NUDITY.  The appearance of a human bare buttock, anus, male genitals, female genitals or female breasts.
      (20)   OPERATOR.  The owner, licensee, manager or person in charge of any premises.
      (21)   PEEP BOOTH.  An adult motion picture theater with a viewing room or cubical of less than 150 square feet of floor space.
      (22)   PREMISES or LICENSED PREMISES.  Any premises that requires a sexually oriented business license and that is classified as a sexually oriented business.
      (23)   PRINCIPAL OWNER.  Any person owning, directly or beneficially:
         (a)   Ten percent (10%) or more of a corporation’s equity securities; or
         (b)   Ten percent (10%) or more of the membership interests in a limited liability company; or
         (c)   In the case of any other legal entity, 10% or more of the ownership interests in the entity.
      (24)   PRIVATE ROOM.  A room in a hotel/motel that is not a peep booth, has a bed and a bath in the room or adjacent room, and is used primarily for lodging.
      (25)   REGULAR or REGULARLY.  Recurring, attending or functioning at fixed or uniform intervals.
      (26)   SEMI-NUDE.  A state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast, as well as portions of the body covered by supporting straps or devices.
      (27)   SEXUAL ENCOUNTER CENTER.  A business or enterprise that, as one of its primary business purposes, offers a place where two or more persons may congregate, associate or consort for the purpose of “sexually explicit activities” or the exposure of “specified anatomical areas” for any form of consideration, including, but not limited to:
         (a)   Physical contact in the form of wrestling or tumbling between persons of the same or opposite sex; or
         (b)   Activities when one or more of the persons is in a state of nudity or semi-nudity; or
         (c)   Permits patrons to display or be filmed or photographed performing “sexually explicit activities” or displaying “specified anatomical areas” for recording or transmission over the World Wide Web or any other media.
      (28)   SEXUALLY EXPLICIT ACTIVITIES.  Any of the following:
         (a)   The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts; or
         (b)   Sex acts, normal or perverted, actual or simulated, including, but not limited to, intercourse, oral copulation or sodomy; or
         (c)   Masturbation, actual or simulated; or
         (d)   Any activity intended to arouse, appeal to or gratify a person’s lust, passions or sexual desires; or
         (e)   The display of human genitals in a state of sexual stimulation, arousal or tumescence; or
         (f)   The display of excretory function as part of or in connection with any of the activity set forth in divisions (a) through (e) of this definition.
      (29)   SEXUALLY ORIENTED BUSINESS.  An adult arcade, adult bookstore or adult video store, adult novelty or retail store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, sexual encounter center or similar establishment or any place that permits patrons to be filmed or photographed performing “sexually explicit activities” or displaying “specified anatomical areas” for electronic transmission over the World Wide Web. “Sexually oriented” when used to describe film, motion picture, videocassette, slides, or other photographic reproductions shall mean film, movies, motion picture videocassette, slides or other photographic reproductions that regularly depict material which is distinguished or characterized by an emphasis on matter depicting or describing “sexually explicit activities” or “specified anatomical areas” offered for observation by the patron(s) on the premises of a sexually oriented business. The definition of SEXUALLY ORIENTED BUSINESS shall not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the State engages in medically approved and recognized sexual therapy.
      (30)   SPECIFIED ANATOMICAL AREAS.  Any of the following:
         (a)   Less than completely and opaquely covered human genitals, pubic region or pubic hair, buttock, or female breast or breasts or any portion thereof that is situated below a point immediately above the top of the areola, or any combination of the foregoing; or
         (b)   Human genitals in a state of sexual arousal, even if opaquely and completely covered.
      (31)   SPECIFIED CRIMINAL ACTS.  Sexual crimes against children, sexual abuse, criminal sexual conduct, rape, crimes classified as sexual crimes by the State of Michigan or any other state, or crimes connected with another adult use business, including, but not limited to, the distribution of obscenity, prostitution and/or pandering.
      (32)   SIGNIFICANT OR SUBSTANTIAL PORTION.  Thirty percent (30%) or more of the term modified by such phrase. If a business has 29% percent or less of its stock-in-trade or interior floor space devoted to sexually oriented material, the use does not qualify as a regulated use. However, based upon the potential negative secondary impacts which relate to the sale, display and/or exhibition of sexually oriented materials, additional regulations of these materials is required as follows:
         (a)   Floor space/display restrictions. The sale, display or exhibition of sexually oriented materials shall be limited to no more than 29% of the total stock in trade or interior floor space. The sexually oriented materials shall be located in the rear portion of a building away from its main entrance area. The sexually oriented materials shall be separated by racks, walls or other means that would restrict visibility into the area displaying the sexually oriented materials. No sexually explicit materials shall be permitted to be placed on the non-adult side of this separation.
         (b)   No sexually explicit materials shall be displayed in any of the business’s windows at any time or visible from the exterior of the business or building. Additionally, no portion of the ceiling in a business or building will be permitted to be used to display sexually explicit materials.
         (c)   Magazines that contain “sexually explicit activities” or “specified anatomical areas” may be located outside an area specifically devoted to sexually explicit materials. However, the merchandise rack on which the materials are placed must be located immediately adjacent to the separate area that sells the sexually explicit materials, and contain opaque blinders that only allow viewing of the magazine title.
         (d)   Height restrictions. The height of the racks and display walls upon which sexually explicit material can be displayed shall be limited to six feet.
(Ord. 2011-02, passed 4-28-2011)