746.01 Purpose and findings.
746.02 Definitions.
746.03 Classification.
746.04 Sexually oriented business license required.
746.05 Sexually oriented business employee license required.
746.06 Sexually oriented business license application.
746.07 Issuance of sexually oriented business license.
746.08 Sexually oriented business employee license application.
746.09 Issuance of sexually oriented business employee license.
746.10 Fees.
746.11 Inspection.
746.12 Expiration and renewal of license.
746.13 Suspension.
746.14 Revocation.
746.15 Appeal rights.
746.16 Transfer of license.
746.17 Prohibition of adult motels.
746.18 Regulations pertaining to the exhibition of sexually explicit films, videos or live entertainment in viewing booths.
746.19 Additional regulations concerning the operation of sexually oriented businesses.
746.20 Loitering and exterior lighting and monitoring requirements.
746.21 Penalty.
746.22 Injunction.
746.23 Effect of partial invalidity.
746.24 Establishments and employees subject to this chapter.
CROSS REFERENCES
Unlawful operation of viewing booths depicting sexual conduct - see GEN. OFF. 533.19
Juveniles on the premises of adult entertainment establishments prohibited - see GEN. OFF. 533.20
Sexually oriented businesses; illegal operation and activity - see GEN. OFF. 533.21
Zoning of sexually oriented businesses - see P. & Z. Ch. 1187
(a) Purpose. That the purpose of this chapter is to establish reasonable and uniform regulations to minimize and control the negative secondary effects of sexually oriented businesses within the City in order to promote the health, safety, and welfare of the citizens of the City. The provisions of this chapter have neither the purpose nor the effect of imposing a limitation or restriction on the content of any communicative materials or communication, including sexually oriented entertainment. Similarly, it is not the purpose or effect of this chapter to restrict or deny access by adults to sexually oriented entertainment protected by the First Amendment, or to deny access by distributors and exhibitors of sexually oriented entertainment to their intended market. Furthermore, it is not the intent or effect of this chapter to condone or legitimize the distribution or exhibition of entertainment that is obscene.
(b) Findings. Based on evidence concerning the adverse secondary effects of sexually oriented businesses presented in hearings and in reports made available to the Council, and on findings, interpretations and narrowing constructions incorporated in the cases of City of Littleton v. Z.J. Gifts D-4 L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, 529 U.S. (2002); Pap's A.M. v. City of Erie, 529 U.S. 277 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986); Young v. American Mini Theaters, 426 U.S. 50 (1976); California v. LaRue, 409 U.S. 109 (1972); Deja vu of Cincinnati, L.L.C. v. Union Township Board of Trustees, 411 F.3d 777 (6th Cir. 2005); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Ben's Bar Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); Deja vu of Nashville, Inc. et al. v. Metropolitan Government of Nashville and Davidson County, 274 F.3d 377 (6th Cir. 2001); Nightclubs, Inc. v. City of Paducah, 202 F.3d 884 (6th Cir. 2000); DLS, Inc. v. City of Chattanooga, 107 F.3d. 403 (6th Cir. 1997); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994); ILQ Investments v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994); Fantasyland Video, Inc. v. County of San Diego, 373 F.Supp.2d 1094 (S.D.Cal. 2005); Threesome Entertainment v. Strittmather, 4 F.Supp.2d 710 (N.D. Ohio 1998); and on studies in other cities including New York, New York; Los Angeles, California; Indianapolis, Indiana; Denver, Colorado; Kansas City, Missouri; Garden Grove, California; Oklahoma City, Oklahoma; Houston, Texas; and the State of Minnesota; this Council finds:
(1) Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to: personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and trafficking, negative impacts of property values, urban blight, litter and sexual assault and exploitation. Each of the aforementioned negative secondary effects constitutes a harm which the City has a substantial governmental interest in preventing and/or abating. This substantial governmental interest in preventing negative secondary effects, which is the City's rationale for this chapter, exists independently of any comparative analysis between the negative secondary effects associated with sexually oriented businesses and those associated with non-sexually oriented businesses. Additionally, the City's interests in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the City. The City finds that the cases and documentation relied on in this chapter are reasonably believed to be relevant to said negative secondary effects.
(2) Sexual acts, including masturbation and oral sex, occur at sexually oriented businesses, especially those which provide private or semi-private booths or rooms for viewing films, videos, or live sexually-oriented entertainment. Such activities may result in spreading communicable diseases such as syphilis, gonorrhea, and human immunodeficiency virus (HIV).
(3) Offering sexually oriented entertainment under conditions that encourage such activities creates unhealthy conditions.
(4) Sanitary conditions in some sexually oriented businesses are unhealthy, in part because of the failure of owners and operators to regulate those activities and maintain their facilities.
(5) Numerous studies and reports have determined that semen is found in the areas of sexually oriented businesses where persons view sexually oriented films.
(6) The findings noted in divisions (b)(1) through (b)(5) raise substantial governmental concerns.
(7) Sexually oriented businesses have operational characteristics which should be reasonably regulated in order to protect those substantial governmental concerns.
(8) A reasonable licensing procedure is an appropriate mechanism to place the burden of that reasonable regulation on the owners and operators of sexually oriented businesses. Further, such a licensing procedure will place a heretofore nonexistent incentive on operators to see that sexually oriented businesses are run in a manner consistent with the health, safety and welfare of 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 sexually oriented business, and fully in possession and control of the premises and activities occurring therein.
(9) The regulation of nudity in sexually oriented businesses will further the substantial governmental interests in preventing prostitution and other sex-related crimes, including illegal sex acts, and protecting the public health, safety, and welfare.
(10) Removal of doors, curtains, partitions, drapes, or any other obstruction whatsoever that would be capable of wholly or partially obscuring the view from outside a viewing booth of any person inside a viewing booth in sexually oriented businesses and requiring sufficient lighting on premises with viewing booths will advance the substantial governmental interest in curbing the illegal and unsanitary sexual activity occurring in adult arcades and theaters and will facilitate enforcement of the provisions of this chapter and other Federal, State and local laws, thereby furthering the substantial governmental interest in protecting the public health, safety, and welfare.
(11) Requiring sufficient lighting in all sexually oriented businesses will advance the substantial governmental interest in curbing illegal sexual activity on the premises of sexually oriented businesses, and will facilitate enforcement of the provisions of this chapter and other Federal, State and local laws, thereby furthering the substantial governmental interest in protecting the public health, safety, and welfare.
(12) The disclosure of certain information by those persons ultimately responsible for the day-to-day operation and maintenance of sexually oriented businesses, and by employees of such businesses, will facilitate the enforcement of the provisions of this chapter and other Federal, State and local laws, and will thereby further the substantial government interest in protecting the public health, safety, and welfare.
(13) A person who recently has been convicted of a sexually related crime is not an appropriate individual to operate or be employed in a sexually oriented business or adult motel.
(14) Barring such individuals from the management of and employment in sexually oriented businesses for a period of years serves as a deterrent to and prevents the commission of sexually related criminal acts, including conduct which leads to the transmission of sexually transmitted diseases.
(Ord. 2007-40. Passed 5-7-07.)
For purposes of this chapter, the words and phrases defined hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context.
(a) "Adult arcade" means any place to which the public is permitted or invited where either or both (i) motion picture machines, projectors, DVDs, video or laser disc players, or (ii) other video or image-producing devices are available, run via coin, token, or any form of consideration, to show images to 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 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, DVDs, or video reproductions, slides, or other visual representations that are characterized by the depiction or description of specified sexual activities or specified anatomical areas; or
(2) Instruments, devices, or paraphernalia, other than prophylactics, that are designed for use in connection with specified sexual activities.
(3) For the purpose of this section, “principal business purpose” means 25% or more of the stock in trade of the business offered for sale or rental for consideration measured as a percentage of either the total linear feet of merchandise for sale or rental for consideration on display or the gross receipts of merchandise for sale or rental for consideration, whichever is the greater. A commercial establishment may have other “principal business purposes” that do not involve the offering for sale or rental 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.
(c) "Adult cabaret" means a nightclub, bar, restaurant, or similar commercial establishment that regularly features:
(1) Persons who appear in a state of nudity or state of semi-nudity; or
(2) Live entertainment characterized by the depiction or description of specified anatomical areas or specified sexual activities; or
(3) Live entertainment of an erotic nature, including exotic-dancers, strippers, male or female impersonators, or similar entertainment; or
(4) Films, motion pictures, videocassettes, DVDs, slides or other photographic reproductions that 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; and provides patrons with closed-circuit television transmissions, films, motion pictures, DVDs, 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
(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 sub-rent 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, DVDs, video cassettes, slides, or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
(f) "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.
(g) "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.
(h) "Employee" means a person who performs any service or work on the premises of a sexually oriented 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, lessee, 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 on the premises exclusively for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.
(i) "Employee station" means an area on the premises of a sexually oriented business designated for occupancy exclusively by one or more employees whose duties include assuring compliance with the provisions of this chapter.
(j) "Health Commissioner" means the City of Elyria Health Commissioner or his or her authorized representative.
(k) "Licensee" means, with respect to a sexually oriented business license issued under this chapter, a person in whose name a license to operate a sexually oriented business or adult motel has been issued, as well as the individual(s) designated on the license application as principally responsible for the operation of the sexually oriented business or adult motel. With respect to a sexually oriented employee license issued under this chapter, “licensee” means a person in whose name a license has been issued authorizing employment in a sexually oriented business or adult motel.
(l) "Live viewing booth" means any private or semi-private booth, or any viewing room of less than 150 square feet of floor space, to which the public may gain admittance, wherein a live performance is presented to five or fewer persons at any one time.
(m) "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.
(n) "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.
(o) "Operate" means to control or hold primary responsibility for the operation of a sexually oriented business or adult motel, either as a business entity, as an individual, or as part of a group of individuals with shared responsibility. "Operate" or "cause to be operated" shall mean to cause to function or to put or keep in operation. “Operator” means any persons on the premises of a sexually oriented business who is authorized to exercise overall operational control or hold primary responsibility for the operation of a sexually oriented business or who causes to function or who puts or keeps in operation the business. A person may be found to be operation or causing to be operated a sexually oriented business, whether or not that person is an owner, part owner, or licensee of the business.
(p) "Person" means an individual, proprietorship, partnership, firm, association, joint stock company, corporation or combination of individuals of whatever form or character.
(q) "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.
(r) "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 semi-nude.
(s) "Sexually oriented 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. "Sexually oriented business" does not include an adult motel as defined above.
(t) "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 breast below a point immediately above the top of the areola.
(u) "Specified criminal activity" means any of the following offenses:
(1) 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;
(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.
(v) "Specified sexual activities" means any of the following:
(1) Intercourse, oral copulation, masturbation, or sodomy; or
(2) Excretory functions as a part of or in connection with any of the activities set forth in division (1) of this definition.
(w) "Video booth" means any private or semi-private booth or any viewing room of less than 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 or fewer persons at any one time.
(x) "Viewing booth" means live viewing booth or video booth, and "viewing booths" means live viewing booths, video booths, or any combination thereof.
(y) "Transfer of ownership or control" of a sexually oriented business shall mean 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. 2007-40. Passed 5-7-07.)
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