§ 153.118  LODGING, DINING AND ENTERTAINMENT USES.
   (A)   Sexually oriented businesses.
      (1)   Intent. In the development and execution of these zoning regulations, it is recognized that some uses, because of their very nature, may have serious objectionable operational characteristics, particularly when several of those uses are concentrated under certain circumstances, thereby causing a detrimental effect upon the adjacent areas. The proximity of adult-regulated uses to certain other uses considered particularly susceptible to the negative impacts of a concentration of adult-regulated uses has been shown to erode the quality of life, adversely affect property values, disrupt business investment, encourage residents and businesses to move or avoid the community, increase crime and contribute to a blighting effect on the surrounding area. There is convincing documented evidence of the negative effect that adult-regulated uses have on both existing businesses around them and the surrounding residential areas to which they are adjacent. Therefore, the following intents are served by these regulations.
         (a)   This division (A) describes the uses regulated and the specific standards necessary to ensure that the adverse effects of these uses will not contribute to the deterioration of the surrounding neighborhood, to prevent undesirable concentration of these uses, and to require sufficient spacing from uses considered most susceptible to negative impacts.
         (b)   These provisions are not intended to impose, nor shall they have the effect of imposing a limitation or restriction on the content of any communicative materials including, but not limited to, sexually oriented materials that are protected by the First Amendment to the United States Constitution.
         (c)   Additionally, it is not the intent of the provisions of this division (A) to restrict or deny, nor shall it have the effect of restricting or denying, access by adults to sexually oriented materials that are protected by the federal and state constitutions.
         (d)   Further, it is not the intent of these provisions to deny, nor shall they have the effect of denying, access by the distributors and exhibitors of adult oriented entertainment to their target market.
         (e)   These regulations shall not be interpreted as intending to legitimize any activities that are prohibited by federal or state law, or by any other ordinance of the city.
      (2)   Definitions. For the purpose of this division (A), the following definitions shall apply unless the context clearly indicates or requires a different meaning.
         SEXUALLY ORIENTED BUSINESS. Any use of land devoted to displaying or exhibiting printed, recorded or electronic material or live entertainment, a significant portion of which depicts, describes or presents specified sexual activities or specified anatomical areas including, but not limited to: adult arcade; adult bookstore; adult novelty store; adult video store; adult cabaret; adult motel; adult motion picture theater; adult theater; escort agency; nude modeling studio; sexual encounter center; or massage parlor. The term “significant”, as used above and as follows, is defined as greater than 20% of the total material displayed or exhibited for sale or entertainment. Adult-regulated uses, activities and related definitions include, but are not limited to the following.
            1.   ADULT ARCADE. Any place to which the public is permitted or invited wherein coin-operated, slug-operated or for any form of consideration an electronically, electrically or mechanically controlled still or motion picture machine, projector, video or disc player, or other image-producing device is maintained to show images to five or fewer persons per machine at any one time, and where the image is so displayed, distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
            2.   ADULT BOOKSTORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. A commercial establishment which, as one of its principal purposes, offers for sale or rental for any form of consideration, any one or more of the following:
               a.   Books, magazines, periodicals or other printed matter or photographs, films, motion pictures, video cassettes, discs or other video reproduction, slides or other visual representations which are distinguished or characterized by the depiction or description of specified sexual activities or specified anatomical areas; or
               b.   Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities.
            3.   ADULT CABARET. A nightclub, bar, restaurant or similar commercial establishment which regularly features:
               a.   Persons who appear live in a state of nudity or semi-nudity;
               b.   Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or
               c.   Films, motion pictures, video cassettes or discs, slides or other video or photographic reproductions which are distinguished or characterized by the depiction of specified sexual activities or specified anatomical areas.
            4.   ADULT MOTEL. A hotel, motel or similar commercial establishment which:
               a.   Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas;” and has a sign visible from the public right-of-way;
               b.   Regularly offers a sleeping room for rent for a period of time that is less than ten hours; or
               c.   Regularly 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.
            5.   ADULT MOTION PICTURE THEATER. A commercial establishment where, for any form of consideration, films, motion pictures, videos, slides or other similar photographic reproduction are regularly shown which are consistently distinguished or characterized by the depiction or description of specified sexual activities or specified anatomical areas.
            6.   MASSAGE PARLOR. An establishment offering or providing massages, body rubs, physical stimulation or other similar treatments where the person either receiving or providing the service exposes specified anatomical areas or which involves real or simulated specified sexual activities. The following uses are not included as part of this definition:
               a.   Services by a licensed physician, chiropractor or osteopath, a licensed or certified physical or massage therapist, a licensed practical nurse or any other similarly licensed medical professional;
               b.   Electrolysis treatment by a licensed operator of electrolysis equipment;
               c.   Hospitals, nursing homes, medical clinics or medical offices; and
               d.   Barber shops or beauty parlors, health spas and/or salons offering massage to the scalp, face, neck or shoulders only.
         SPECIFIED ANATOMICAL AREAS. The graphic depiction, whether real or simulated, of less than completely and opaquely covered human genitals, pubic region, buttock and female breast below a point immediately above the top of areola and human male genitals in a discernibly turgid state, even if completely and opaquely covered.
         SPECIFIED SEXUAL ACTIVITIES. The graphic depiction, whether real or simulated, of human genitals in a state of sexual stimulation or arousal, acts of human masturbation, sexual intercourse or sodomy and fondling or other erotic touching of human genitals, pubic region, buttock or female breast.
      (3)   Locational requirements.
         (a)   Sexually oriented business are not permitted in any zoning district except the Industrial (I) Zone.
         (b)   No sexually oriented business shall be permitted in a location in which a principal building or accessory structure, including signs, is within 300 feet of any principal building or accessory structure of another sexually oriented business.
         (c)   No sexually oriented business shall be established on a parcel within 300 feet of any parcel in a residential district or any parcel used as a dwelling, public park, school, child care facility, church or similar place of worship, public library, city hall, police department or fire department, youth center or commercially operated school attended by children such as dance schools, gymnastic centers and the like. The distance between a proposed sexually oriented business and any such zoned area or existing use shall be measured in a straight line from the nearest property line upon which the proposed sexually oriented business is to be located to the nearest property line of that zoned area or existing use.
      (4)   Procedures.
         (a)   Special use. Review of any request for establishment of a sexually oriented business shall be in accordance with the special land use provisions of §§ 153.250 through 153.257 of this chapter.  The Planning Commission shall conduct a public hearing, in accordance with the timing and notification requirements of § 153.251(B) and shall approve, deny or approve with conditions the special land use request based on the requirements of this subchapter and the general standards of § 153.253.
         (b)   Conditions of approval. Prior to granting approval for the establishment of any sexually oriented business, the Planning Commission may impose conditions or limitations upon the establishment, location, construction, maintenance or operation of the use as authorized by § 153.252. Any evidence, bond or other performance guarantee may be required as proof that the conditions stipulated in connection therewith will be fulfilled.
      (5)   Regulated uses. The following uses are regulated by this division (A):
         (a)   Adult arcade;
         (b)   Adult book store;
         (c)   Adult cabaret;
         (d)   Adult motel;
         (e)   Adult motion picture theater; and
         (f)   Massage parlor.
      (6)   Conditions and operating requirements.
         (a)   Any sign must comply with the provisions of this chapter.
         (b)   The entrances to the proposed sexually oriented business at both the exterior and interior walls, in a location visible to those entering and exiting the business, must be clearly marked with lettering at least two inches in height stating:
            1.   “Persons under the age of 18 are not permitted to enter the premises”; and
            2.   “No alcoholic beverages of any type are permitted within the premises”.
         (c)   No product or service for sale or gift, or any picture or other representation of any product or service for sale or gift, shall be displayed so as to be visible by a person of normal visual acuity from the nearest adjoining roadway or neighboring property.
         (d)   Hours of operation shall not exceed 9:00 a.m. to 11:00 p.m., Monday through Saturday.
         (e)   All off-street and on-site parking areas shall comply with this chapter based on the primary use (i.e., retail, theater and the like) and shall additionally be illuminated at all times.
         (f)   Any booth, room or cubical available in any sexually oriented business that is used by patrons for the viewing of any entertainment shall:
            1.   Be unobstructed by any door, lock or other entrance and exit control device;
            2.   Have at least one side totally open to a public, lighted aisle so that there is an unobstructed view at all times from the adjoining aisle of any occupant;
            3.   Be illuminated such that a person of normal visual acuity looking into the booth, room or cubical from its entrance adjoining the public lighted aisle can clearly determine the number of people within; and
            4.   Have no holes or openings in any side or rear wall not relating to utility, ventilation or temperature control services or otherwise required by any governmental code or authority.
         (g)   No person operating a sexually oriented business shall permit any person under the age of 18 to be on the premises of the business as an employee, customer or otherwise.
   (B)   Restaurant with drive-through.
      (1)   (a)   Sufficient stacking capacity for the drive-through facility shall be provided to ensure that traffic does not extend into a private or public right-of-way, with a minimum of seven stacking spaces.
         (b)   Stacking spaces shall be located so as not to interfere with vehicular circulation, access to parking spaces and egress from the property by vehicles not using the drive-through facility.
      (2)   (a)   In addition to parking space requirements of §§ 153.185 through 153.190 of this chapter, at least two parking or waiting spaces shall be provided, in close proximity to the exit of the drive-through portion of the operation, to allow for customers waiting for delivery of orders.
         (b)   The waiting spaces shall be designed to allow maneuvering without being blocked by another vehicle and shall not impede traffic flow on the site.
      (3)   Public access to the site shall be located at least 100 feet from any intersection as measured from the nearest right-of-way line to the nearest edge of the access.
      (4)   The parking and maneuvering areas of the site shall be fenced and screened from the view of any abutting residential district or use by a decorative fence or wall, or a landscaped equivalent.
      (5)   The intensity level of sounds leaving the site shall not exceed 55 decibels (dBA) at any lot line bordering residential uses.
      (6)   Outdoor menu boards shall be located behind the front building line.
   (C)   Restaurant with outdoor seating.
      (1)   Restaurants providing outdoor seating within an at-grade deck or patio or a roof top deck, must first acquire a zoning and building permit from the city and Charlevoix County Building Department.
      (2)   All structures would be subject to review by the Zoning Administrator and shall meet the requirements of this chapter.
      (3)   Restaurant outdoor seating shall be allowed only during normal operating hours of the establishment.
      (4)   If alcoholic beverages are to be served, the current Liquor Control Commission rules and regulations shall apply.
      (5)   Any music or sound that would violate the city's noise ordinances and restrictions is prohibited.
      (6)   Lighting shall be shielded and pointed downward and shall not be a nuisance to adjacent properties subject to § 153.172.
      (7)   Outdoor seating space is subject to the requirements of Off-Street Parking, Loading, Access and Circulation.
   (D)   Roof top decks. The following provisions are intended to regulate roof top deck use, permanent or temporary, in all districts to reduce safety concerns, noise and other nuisances, and visual impact on neighboring properties and on the community generally. The use of roof top decks is subject to the following restrictions:
      (1)   A zoning and building permit for any roof top deck must be first obtained from the City Zoning Administrator and Charlevoix County Building Department and is subject to construction of and maintenance of guardrails and other protective features as required by the Charlevoix County Building Code.
      (2)   Any request for a City of Charlevoix zoning permit that includes a roof top deck must undergo site plan review and receive approval by the Planning Commission prior to issuance of a zoning permit.
      (3)   Parapet walls and perimeter guardrails shall extend around the perimeter of the roof top deck and incorporate exterior building materials consistent with the architectural style of the underlying structure subject to § 153.170.
      (4)   Any structure on a deck or patio must be permitted under the Zoning Code. Portable appurtenances are prohibited. Temporary appurtenances and structures are subject to site plan review to assure public safety.
      (5)   Except within the CBD, Central Business District, amplified musical instruments or sounds are prohibited. Any other music or sound that would violate the city's noise ordinances and restrictions is prohibited.
      (6)   All commercial food preparation shall take place inside the establishment.
      (7)   No open flames are allowed.
      (8)   Lighting shall be shielded and pointed downward and shall not be a nuisance to adjacent properties subject to § 153.172.
      (9)   Roof top deck space is subject to the requirements of §§ 153.185 et seq., Off-Street Parking, Loading, Access and Circulation.
(Prior Code, § 5.48)  (Ord. 794, passed 9-17-2018; Ord. 795, passed 11-5-2018; Ord. 821, passed 10-19-2020)