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(a) Purpose. It is the purpose of this chapter to regulate sexually-oriented businesses to promote the health, safety, morals and general welfare of the citizens of the Municipality and to establish reasonable and uniform regulations regarding sexually-oriented businesses within the Municipality. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually-oriented materials. Similarly, it is not the intent or effect 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 to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene material.
(b) Findings. Based on evidence concerning the adverse secondary effects of adult uses on the community presented in reports made available to the Council, and on findings incorporated in the cases of Municipality of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), FW/PBS, Inc. v. Municipality of Dallas, 493 U.S. 295 (1990); Barnes v. Glen Theatre, Inc., 509 U.S. 560 (1991), Municipality of Erie v. Pap's A. M., 120 5. Ct. 1382 (2000), and on studies in other communities including, but not limited to: Phoenix and Tucson, Arizona, the Council finds:
(1) Sexually-oriented businesses 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 sexually-oriented businesses, defined in this chapter as adult theaters and adult cabarets, engage in higher incidence of certain types of illicit sexual behavior than employees of other establishments.
(3) Sexual acts, including masturbation, and oral and anal sex, occur at sexually-oriented businesses, especially those which provide private or semi-private booths or cubicles for viewing films, videos, or live sex shows.
(4) Offering and providing such space encourages such activities, which creates unhealthy conditions.
(5) Persons frequent certain adult theaters, adult arcades, and other sexually- oriented businesses for the purpose of engaging in sex within the premises of such sexually-oriented businesses.
(6) At least 50 communicable diseases may be spread by activities occurring in sexually-oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HW-AIDS), genital herpes, hepatitis B, Non A, Non B amebiasis, salmonella infections and shigella infections.
(7) Since 1981 there has been an increasing cumulative number of reported cases of AIDS (acquired immunodeficiency syndrome) caused by the human immunodeficiency virus (HW) 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.
(8) 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, 1990.
(9) 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.
(10) In his report of October 22, 1986, the Surgeon General of the United States 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.
(11) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts.
(12) Sanitary conditions in some sexually-oriented 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 the facilities to self-regulate those activities and maintain those facilities.
(13) Numerous studies and reports have determined that semen is found in the areas of sexually-oriented businesses where persons view "adult" oriented films.
(14) The findings noted in divisions (1) through (13) of this section raise substantial governmental concerns.
(15) Sexually-oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns.
(16) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and the operators of the sexually-oriented businesses. Further, such a licensing procedure will place an incentive on the operators to see that the sexually, oriented business is run in a manner consistent with the health, safety, and welfare of its patrons and employees, as well as the citizens of the Municipality. It is appropriate to require reasonable assurances that the licensee is the actual operator of the sexually-oriented business, fully in possession and control of the premises and activities occurring therein.
(17) Removal of doors on adult booths and requiring sufficient lighting on premises with adult booths advances a substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult theaters.
(18) Requiring licensees of sexually-oriented 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.
(19) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of the sexually-oriented 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.
(20) In the prevention of the spread of communicable diseases, it is desirable 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 conduct.
(21) The fact that an applicant for an adult use license has been convicted of a sexually related crime leads to the rational assumption that the applicant may engage in that conduct in contravention of this chapter.
(22) The barring of such individuals from the management of adult uses for a period of years serves as a deterrent to, and prevents conduct which leads to, the transmission of sexually transmitted diseases.
(23) The general welfare, health, morals, and safety of the citizens of the Municipality will be promoted by the enactment of this chapter.
(Ord. 14-02. Passed 7-8-02.)
As used in this chapter, certain terms are defined as follows:
(a) "Adult arcade" means any place to which the public is permitted or invited wherein coin operated or slug operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting of describing of "specified sexual activities" or "specified anatomical areas."
(b) "Adult bookstore", "adult novelty store" or "adult video store" means a commercial establishment which has as a significant or substantial portion of its stock-in-trade, or derives a significant or substantial portion of its revenues or devotes a significant or substantial portion of its interior business or advertising, or utilizes 20 percent or more of its sales or display space for the sale or rental, for any form of consideration, of any one or more of the following:
(1) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, slides, or other visual representations, which depict or describe "specified sexual activities" or "specified anatomical areas";
(2) Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of the user or others.
(c) "Adult cabaret" means a nightclub, bar, restaurant or similar commercial establishment which regularly features:
(1) Persons who appear in a state of nudity;
(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, slides, or other photographic reproductions which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."
(d) "Adult motel" means a hotel, motel or similar commercial establishment which:
(1) 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 which advertises the availability of this adult type of photographic reproductions;
(2) Offers a sleeping room for rent for a period of time that is less than ten hours; or
(3) Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.
(e) "Adult motion picture theater" means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the exposure of "specified sexual activities" or "specified anatomical areas."
(f) "Adult theater" means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity, semi-nudity or live performances which are characterized by the exposure of "specified sexual activities" or "specified anatomical areas."
(g) "Chief of Police" means the Chief of Police of East Palestine or his designated agent.
(h) "Employee" means a person who performs any service on the premises of a sexually-oriented business 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 exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.
(i) "Escort" means a person who, for consideration, agrees or offers to act as a companion, guide, or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
(j) "Escort agency" means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a gratuity or other consideration.
(k) "Establishment means and includes any of the following:
(1) The opening or commencement of any sexually-oriented business as a new business;
(2) The conversion of an existing business, whether or not a sexually-oriented business, to any sexually-oriented business;
(3) The addition of any sexually-oriented business to any other existing sexually-oriented business; or
(4) The relocation of any sexually-oriented business.
(l) "Nude model studio" means any place where a person who appears in a state of nudity or displays "specified anatomical areas" is provided to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons who pay money or any form of consideration.
(m) "Nudity" or "state of nudity" shall have the same meaning as defined by Ohio R.C. 2907.01.
(n) "Operates" or "causes to operate" means to cause to function or to put or keep in operation. A person may be found to be operating or causing to be operated a sexually-oriented business whether or not that person is an owner, part owner, or sexually-oriented business licensee of the business.
(o) "Person" means an individual, proprietorship, corporation, partnership, limited liability company or any other business entity.
(p) "Public park" means public land which has been designated for park or recreational activities including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian bicycle paths, open space, wilderness areas, or similar public land within the Municipality which is under the control, operation or management of the Municipality, County or State.
(q) "Residential district" shall have the same meaning as defined by the East Palestine Zoning Code.
(r) "Residential use" means a single family, duplex, multiple family, or mobile home park, mobile home subdivision and campground use.
(s) "School" means any public or private educational facility including, but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities.
(t) "Semi-nude" means the 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 in part.
(u) "Sexual encounter center"' means a business or commercial enterprise that, as one if its primary 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 in a state of nudity.
(v) "Sexually-oriented business" means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio, or sexual encounter center.
(w) "Sexually-oriented business licensee" means an individual whose name a sexually-oriented business license has been issued, and in the case of a "sexually-oriented business employee licensee," a person in whose name a sexually-oriented business license has been issued authorizing employment in a sexually-oriented business.
(x) "Specified anatomical areas" means human genitals in a state of sexual arousal or exposed for the purpose of sexually arousing another.
(y) "Specified sexual activities" means and includes 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, or sodomy;
(3) Masturbation, actual or simulated; and
(4) Excretory functions as part of or in connection with any of the activities set forth in divisions (y)(1) to (3) of this section.
(z) "Substantial enlargement" of a sexually-oriented business means the increase in floor area occupied by the business by more than 25 percent, as the floor area exists as of the date of the issuance of the sexually-oriented business license.
(aa) "Transfer of ownership or control" of a sexually-oriented business means and includes any of the following:
(1) The sale, lease, or sublease of the business;
(2) The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
(3) The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(Ord. 14-02. Passed 7-8-02.)
Sexually-oriented businesses are classified as follows:
(a) Adult arcades;
(b) Adult bookstores or adult video stores;
(c) Adult cabarets;
(d) Adult motels;
(e) Adult motion picture theaters;
(f) Adult theaters;
(g) Escort agencies;
(h) Nude model studios; and
(i) Sexual encounter centers.
(Ord. 14-02. Passed 7-8-02.)
(a) No person shall operate a sexually-oriented business without a valid sexually- oriented business license issued by the Municipality for the particular type of sexually-oriented business classification.
(b) All applications for a sexually-oriented business license must be made on forms provided by the Chief of Police, which forms shall require the information and verification outlined as Exhibit I attached to original Ordinance 14-02, passed July 8, 2002, incorporated by reference as if fully set out herein.
(Ord. 14-02. Passed 7-8-02.)
(a) No person who operates a sexually-oriented business shall employ a person who does not have a sexually-oriented business employee license.
(b) No person shall obtain employment with a sexually-oriented business without having secured a sexually-oriented business employee license issued by the Municipality.
(c) All applications for a sexually-oriented business employee license must be made on forms provided by the Chief of Police
(Ord. 14-02. Passed 7-802.)
(a) The Chief of Police shall approve the issuance or renewal of a sexually-oriented business license to an applicant within 30 days after receipt of an application unless the Chief of Police finds one or more of the following to be true:
(1) An applicant is under 18 years of age;
(2) An applicant, applicant's spouse or person residing with the applicant, is overdue in payment to the Municipality of taxes, fees, fines, or penalties assessed against or imposed upon the applicant, applicant's spouse or person residing with the applicant.
(3) An applicant, applicant's spouse or person residing with the applicant has been convicted of any violation of a provision of this chapter. The fact that a conviction is being appealed shall have no effect.
(4) The sexually-oriented business license fee required by this chapter has not been paid.
(5) An applicant has been employed in a sexually-oriented business within the preceding 12 months and has demonstrated an inability to operate or manage a sexually-oriented business premises in a peaceful and law abiding manner, thus necessitating action by law enforcement officers.
(6) An applicant has been convicted of:
A. Any felony;
B. Any offense listed in Ohio R.C. 2907;
C. Any offense listed in Ohio R.C. 2950.01, including all subsections of such offenses regardless of whether or not such offenses are classified by the State of Ohio as "sexually-oriented offenses", and regardless of the ages of the persons involved in such cases, a violation of Ohio R. C. 2919.22, 2919.23, 2919.24, or of an offense defined by existing or former laws of this State, present or former ordinances of any municipality of any state, former or present law of any state or of the United States, or a violation under the law applicable in military courts that is or was substantially equivalent to any of the listed offenses, or of an attempt to commit, conspiracy to commit, or complicity to commit any such offenses.
(7) An applicant proposes a site which does not comply with the location regulations as set forth in Section 849.19 hereof.
(b) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
(c) The sexually-oriented business license shall state on its face the name of the person to which it is granted, the expiration date, and the address of the sexually-oriented business.
(d) All sexually-oriented business licenses shall be posted in a conspicuous place at or near the entrance of the sexually-oriented business so that they may be easily read at any time.
(Ord. 14-02. Passed 7-8-02.)
(a) The Chief of Police shall approve the issuance or a renewal of a sexually-oriented business employee license to an applicant within 30 days after receipt of an application unless the Chief of Police finds one or more of the following items to be true:
(1) An applicant is under 18 years of age;
(2) An applicant is overdue in payment to the Municipality of taxes, fees, fines, or penalties assessed against or imposed upon the applicant;
(3) An applicant has been convicted of a violation of a provision of this chapter;
(4) The sexually-oriented business employee license fee required by this chapter has not been paid;
(5) An applicant has been employed in a sexually-oriented business within the preceding 12 months and has demonstrated an inability to maintain employment in a peaceful and law abiding manner, thus necessitating action by law enforcement officers;
(6) An applicant has been convicted of:
A. Any felony;
B. Any offense listed in Ohio R.C. 2907;
C. Any offense listed in Ohio R.C. 2950.01, including all subsections of such offenses, regardless of whether or not such offenses are classified by the State of Ohio as "sexually-oriented offenses", and regardless of the ages of the persons involved in such cases, a violation of Ohio R.C. 2919.22, 2919.23, 2919.24, or of an offense defined by existing or former laws of this State, present or former ordinances of any municipality of any state, former or present law of any state or of the United States, or a violation of the law applicable in military courts that is or was substantially equivalent to any of the listed offenses, or of an attempt to commit, conspiracy to commit or complicity to commit any such offenses-
(b) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
(c) The sexually-oriented business employee license shall state on its face the name of the person to whom it is granted, the expiration date, and the address of the sexually-oriented business by whom the employee will be employed.
(d) All sexually-oriented business employee license shall be posted in a conspicuous place at or near the entrance of the sexually-oriented business so that they may be easily read at any time.
(Ord. 14-02. Passed 7-8-02.)
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