1113.02  SEXUALLY ORIENTED BUSINESSES.
   (a)   Purpose: It is the purpose of this Section to regulate Sexually Oriented Businesses in order to promote the health, safety, morals, and general welfare of the citizens of the City of Eaton, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of Sexually Oriented Businesses within the City of Eaton. The provisions of this Section 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 Section 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 Section to condone or legitimize the distribution of obscene material.
   (b)   Findings:  The City Council has received substantial evidence concerning the adverse secondary effects of adult uses on the community in findings incorporated in the cases of City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 426 U.S. 50 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), and on studies in other communities including, but not limited to: Austin, Texas; Denver, Colorado; Fort Worth, Texas; Indianapolis, Indiana; Islip, New York; Kansas City, Missouri; Los Angeles, California; Newport News, Virginia; New York, New York; Phoenix, Arizona; Seattle, Washington; St. Paul, Minnesota; Tucson, Arizona; and Whittier, California; along with Manatee County, Florida; New Hanover County, North Carolina; and the State of Minnesota.
   (c)   Definitions:  For purposes of this section,
      (1)   "ADULT ARCADE" means any place to which the public is permitted or invited where either or both
         A.   Motion picture machines, projectors, video or laser disc players, or
         B.   Other video or image-producing devices are available, run via coin, token, or any form of consideration, to show images to five (5) 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.
      (2)   "ADULT BOOKSTORE or ADULT MEDIA STORE" means a commercial establishment in which forty percent (40%) or more of its stock in trade constitutes, and/or forty percent (40%) or more of its public floor area displays or contains, “ADULT MEDIA” or “SEXULLY ORIENTED NOVELTIES OR TOYS.”
      (3)   “ADULT CABARET” means a nightclub, bar, restaurant, or similar commercial establishment that regularly features:
         A.   Persons who appear in a “state of nudity” or “state of semi-nudity”; or
         B.   Live entertainment characterized by the depiction or description of specified anatomical areas or specified sexual activities; or
         C.   Live entertainment of an erotic nature including exotic dancers, strippers, male or female impersonators, or similar entertainment; or 
         D.    Exhibiting films, motion pictures, video cassettes, video discs, DVDs, CDs, slides or other photographic or electronic reproductions, whether analog or digital, that are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
      (4)   “ADULT MEDIA” means books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, DVDs and CDs or other devices used to record images, that are distinguished or characterized by an emphasis on the depiction or description of “specified sexual activities” or “specified anatomical areas.”
      (5)   "ADULT MOTEL" means a hotel, motel or similar commercial establishment that:
         A.   Offers accommodations to the public for any form of consideration; and 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 sex-oriented type of photographic reproductions; or
         B.   Offers a sleeping room for rent for a period of time that is less than ten (10) hours: or
         C.   Allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten (10) hours.
      (6)   ADULT MOTION PICTURE THEATER" means a commercial establishment where, for any form of consideration, films, motion pictures, videocassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
      (7)   "ADULT THEATER" means a theater, concert hall, auditorium, or similar commercial establishment that regularly features persons who appear in a state of  semi-nudity, live performances which are characterized by the depiction or description or specified anatomical areas, specified sexual activities, or live entertainment of an erotic nature including exotic dancers, strippers, male or female impersonators, or similar entertainment.
      (8)   "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.
      (9)   "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:
         A.   A proprietary school licensed by the State of Ohio, or a college, junior college or university supported entirely or in part by public taxation.
         B.   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
         C.   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.
      (10)   "NUDITY" or “STATE OF NUDITY” or  "NUDE" means exposing to view the genitals, pubic area, vulva, perineum, anus, anal cleft or cleavage, or pubic hair with less than a fully opaque covering; exposing to view any portion of the areola of the female breast with less than a fully opaque covering; exposing to view male genitals in a discernibly turgid state, even if entirely covered by an opaque covering; or exposing to view any device, costume, or covering that gives the appearance of or simulates any of these anatomical areas.
      (11)   "SEMI-NUDITY" or “STATE OF SEMI-NUDITY” OR “SEMI-NUDE CONDITION” or "SEMI-NUDE" means exposing to view, with less than a fully opaque covering, any portion of the female breast below the top of the areola or any portion of the buttocks.  This definition shall include the entire lower portion of the female breast, but shall not include any portion of the cleavage of the female breast exhibited by a dress, blouse, shirt, leotard, bathing suit, or other clothing, provided that the areola is not exposed in whole or in part.
      (12)   “SEX STORE” means a business offering goods for sale or rent and that meet any of the following tests:
         A.   More than ten percent (10%) of the stock in trade or more than ten percent (10%) of the gross public floor area of the business consists of “sexually-oriented novelties or toys;” or
         B.   It offers for sale items from any two (2) of the following categories: “adult media,” “sexually-oriented novelties or toys,” lingerie, or apparel or other items marketed or presented in a context to suggest their use for sadomasochistic practices, and the combination of such items constitutes more than fifteen percent (15%) of the stock in trade of the business or occupies more than fifteen percent (15%) of the gross public floor area of the business; or
         C.   Which advertises or holds itself out in any forum as a sexually oriented business by use of such terms as “sex toys, “marital aids,” “X-rated,” “XXX,” “adult,” “sex,” “nude,” or otherwise advertises or holds itself out as a sexually oriented business.
      (13)   “SEX STORE” shall not include any establishment which, as a substantial portion of its business, offers for sale or rental to persons employed in the medical, legal or education professions anatomical models, including representations of human genital organs or female breasts, or other models, displays, and exhibits produced and marketed primarily for use in the practice of medicine or law or for use by an educational institution.
      (14)   "SEXUAL ENCOUNTER CENTER" means a business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
         A.   Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
         B.   Activities between male and female persons and/or persons of the same sex when one or more of the persons is semi-nude.
      (15)   “SEXUALLY ORIENTED BUSINESS” means an adult arcade, adult bookstore, adult cabaret, adult media store, adult motion picture theater, adult theater, nude model studio, sex store, or sexual encounter center.  “Sexually Oriented Business” does not include an adult motel as defined above. 
      (16)   “SEXUALLY ORIENTED NOVELTIES OR TOYS” means instruments, devices or paraphernalia either designed as representations of human genital organs or female breasts, or designed or marketed primarily for use to stimulate or arouse human genital organs or female breasts.
      (17)   "SPECIFIED ANATOMICAL AREAS" means:
         A.   The human male genitals in a discernibly turgid state, even if completely and opaquely covered; or
         B.   Less than completely and opaquely covered human genitals, pubic region, buttocks or female breast below a point immediately above the top of the areola.
      (18)   "SPECIFIED CRIMINAL ACTIVITY" means any of the following offenses:
         A.   Prostitution or promoting prostitution; soliciting; loitering to engage in solicitation; 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; for which:
            1.   Less than two (2)  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
            2.   Less than five (5) 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.
         B.   The fact that a conviction is being appealed shall not prevent such conviction from constituting a specified criminal activity as defined in this Section.
      (19)   “SPECIFIED SEXUAL ACTIVITIES” means any of the following:
         A.   The fondling or other erotic touching of human genitals, pubic region, buttocks, anus, or female breasts;
         B.   Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, masturbation, or sodomy; or
         C.   Excretory functions as a part of or in connection with any of the activities set forth in A. or B., above.
      (20)   “STOCK IN TRADE” means the individual items offered for sale or rental in the area of an establishment open to the public.
      (21)   "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 or area 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.
      (22)   "VIEWING BOOTH" means live viewing booth or video booth.
      (23)   "VIEWING BOOTHS" means live viewing booths, video booths, or any combination thereof.
   (d)   Classification: Businesses subject to Sexually Oriented Business licensing are classified as follows:
      (1)   Adult arcades;
      (2)   Adult bookstores or adult media stores;
      (3)   Adult cabarets;
      (4)   Adult motion picture theaters;
      (5)   Adult theaters;
      (6)   Nude model studios;
      (7)   Sex stores;
      (8)   Sexual encounter centers; or
      (9)   Any combination of classifications set forth in paragraphs (1) through (8), above.
   (e)   Establishment And Location Of Sexually Oriented Businesses: A Sexually Oriented Business may be located only in accordance with the restrictions contained in (1) through (7), below.
      (1)   A Sexually Oriented Business may be located only in an area zoned for Industrial Use under this UDO.
      (2)   No Sexually Oriented Business may be established within five hundred (500) feet of:
         A.   A church, synagogue, mosque, temple or building which is used primarily for religious worship and    related religious activities;
         B.   A public or private educational facility including child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high  schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges, and universities. School includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school;
         C.   A boundary of a residential district as shown on the Zoning Map; or
         D.   A public park or recreational area which has been designated for park or recreational activities including a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, wilderness areas, or other similar public land within the City which is under the control, operation, or management of either the City or which is operated or managed by another public entity.
      (3)   No Sexually Oriented Business may be established within five hundred (500) feet of the property line of a lot regulated as a lawful non-conforming residential use as defined in this UDO.
      (4)   No Sexually Oriented Business may be established, operated or enlarged within five hundred (500) feet of another Sexually Oriented Business or any Sexually Oriented Business as defined in this UDO.
      (5)   Not more than one Sexually Oriented Business shall be established or operated in the same building, structure, or portion thereof, and the floor area of any Sexually Oriented Business in any building, structure, or portion thereof containing another Sexually Oriented Business may not be increased.
      (6)   For the purpose of subsections (2) and (3) of this Section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the principal building or structure or tenant space if located in a multi-tenant building used as the part of the premises where a Sexually Oriented Business is operated, to the nearest property line of the premises of a use listed in subsection (2) and (3).
      (7)   For purposes of subsection (4) of this Section, the distance between any two Sexually Oriented Businesses or a Sexually Oriented Business and any Sexually Oriented Business shall be measured in a straight line, without regard to the intervening structures or objects, from the closest exterior wall of the structure or tenant space if located in a multi-tenant building in which each business is located. 
      (8)   No Sexually Oriented Business that was in compliance with the above locational restrictions at the time that it received a license will be subsequently found not to be in compliance if, subsequent to the receipt of the license, a use listed in subsection (2) is newly established or expands so as to be within 500 feet of the Sexually Oriented Business.
   (f)   Additional Regulations Concerning Lot, Yard, Height, Parking, Building And Site Design Standards, And Site Development Plan Requirements:
      (1)   Lot area and width, setbacks, buffering, yard area, height provisions and other site development requirements for a Sexually Oriented Business are those specified in the Industrial Districts of Chapter 1107 of this UDO.
      (2)   Parking requirements for an Adult Cabaret are those specified for restaurants in Section 1111.07 of this UDO.
      (3)   Parking requirements for other Sexually Oriented Businesses are those specified for retail stores in Section 1111.07 of this UDO.
   (g)   Sign Regulations For Sexually Oriented Businesses:
      (1)   All signs shall be “business signs and wall signs” as defined and regulated in Section 1111.08 of this UDO, but in no event shall the maximum allowable sign area exceed forty (40) square feet.  Any address sign area shall be included in the maximum sign area calculation.
      (2)   Review and approval procedures for a sign permit for a Sexually Oriented Business shall be in accordance with this UDO.
      (3)   No merchandise or pictures of the products or entertainment on the premises shall be displayed in window areas or any area where they can be viewed from the sidewalk or street in front of the building.
      (4)   Window areas shall not be covered or made opaque in any way.  No signs shall be placed in any window.  A one-square-foot sign may be placed on the door to state hours of operation and admittance to adults only.
   (h)   Severability And Effect Of Partial Invalidity: If any paragraph, subsection or clause of this Section shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections, and clauses shall not be affected.
(Ord. 05-16.  Passed 11-7-05.)