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746.02 DEFINITIONS.
   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.)
746.03 CLASSIFICATION.
   Businesses subject to sexually oriented business licensing are classified as follows:
   (a)   Adult arcades;
   (b)   Adult bookstores, adult novelty stores, or adult video stores;
   (c)   Adult cabarets;
   (d)   Adult motion picture theaters;
   (e)   Adult theaters;
   (f)   Nude model studios;
   (g)   Sexual encounter centers; and
   (h)   Any combination of classifications set forth in divisions (a) through (g) above.
(Ord. 2007-40. Passed 5-7-07.)
746.04 SEXUALLY ORIENTED BUSINESS LICENSE REQUIRED.
   (a)   No person shall:
      (1)   Operate a sexually oriented business without a valid sexually oriented business license issued by the City pursuant to this chapter.
      (2)   In connection with operating a sexually oriented business, retain the services of a person as an employee, as defined in Section 746.02, who is not licensed as a sexually oriented business employee by the City pursuant to this chapter.
   (b)   Any person who violates division (a)(1) of this section shall be guilty of a misdemeanor of the fourth degree.
(Ord. 2007-40. Passed 5-7-07.)
746.05 SEXUALLY ORIENTED BUSINESS EMPLOYEE LICENSE REQUIRED.
   (a)   No person shall act as an employee, as defined in Section 746.02, on the premises of a sexually oriented business or an adult motel without having secured a sexually oriented business employee license pursuant to this chapter.
   (b)   Any person who violates this section shall be guilty of a misdemeanor of the fourth degree.
(Ord. 2007-40. Passed 5-7-07.)
746.06 SEXUALLY ORIENTED BUSINESS LICENSE APPLICATION.
   (a)   An application for a sexually oriented business license shall be submitted to the Chief of Police on a form provided by the Chief of Police. The application may request and the applicant shall provide such information as reasonably necessary (including fingerprints) to enable the City to determine whether the applicant meets the qualifications established in this chapter.
   (b)   An application for a sexually oriented business license shall identify and be signed by the following persons:
      (1)   If the business entity is owned by an individual, that individual.
      (2)   If the business entity is owned by a corporation, each officer or director of the corporation, any individual owning or controlling more than 50% of the voting shares of the corporation, and any person with an ownership interest in the corporation who will be principally responsible for the operation of the proposed sexually oriented business.
      (3)   If the business entity is owned by a partnership (general or limited), a joint venture, or any other type of organization where two or more persons share in the profits and liabilities of the organization, each partner (other than limited partners); and any other person entitled to share in the profits of the organization, whether or not such person is also obligated to share in the liabilities of the organization, who will be principally responsible for the operation of the proposed sexually oriented business.
   (c)   An application for a sexually oriented business license must designate one or more individuals who are to be principally responsible for the operation of the proposed sexually oriented business, if a license is granted. At least one person so designated must be involved in the day-to-day operation of the proposed sexually oriented business on a regular basis. Each person so designated, as well as the business entity itself, shall be considered a license applicant, must qualify as a licensee under this chapter, and shall be considered a licensee if a license is granted.
   (d)   An application for a sexually oriented business license shall be completed according to the instructions of the application form, which shall require the following:
      (1)   If the applicant is:
         A.   An individual, state the legal name and any aliases of such individual;
         B.   A partnership, state the complete name of the partnership and all of its partners and whether the partnership is general or limited, and provide a copy of the partnership agreement, if any; or
         C.   A joint venture, or any other type of organization where two or more persons share in the profits and liabilities of the organization, state the complete name of the organization and provide a copy of the legal document establishing the organization, if any; or
         D.   A corporation, state the complete name of the corporation and the date of its incorporation, provide evidence that the corporation is in good standing under the laws of its state of incorporation, and state the names and capacity of all officers and directors, the name of the registered corporate agent, and the address of the registered office for service of process.
      (2)   If the applicant intends to operate the sexually oriented business or adult motel under a name other than that of the applicant, state the fictitious name to be used and submit copies of documentation evidencing the registration of the business name under applicable laws.
      (3)   State whether any applicant has been convicted of a specified criminal activity as defined in Section 746.02, and if so, the specified criminal activity involved and the date, place, and jurisdiction of each such conviction.
      (4)   State whether any applicant has had a previous license under this chapter or other similar regulation of another jurisdiction denied, suspended or revoked, including the name and location of the sexually oriented business or adult motel for which the permit was denied, suspended or revoked, as well as the date of the denial, suspension or revocation; and state whether the applicant has been a partner in a partnership or an officer, director or 10% or greater owner of a corporation licensed under this chapter whose license has previously been denied, suspended or revoked, including the name and location of the business for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revocation.
      (5)   State whether any applicant holds any other licenses under this chapter or other similar regulation from this or another jurisdiction and, if so, the names and locations of such other licensed businesses.
      (6)   State the classification of license for which the applicant is filing.
      (7)   State the location of the proposed sexually oriented business or adult motel, including a legal description of the property (i.e., block and lot), street address, and telephone number(s), if any.
      (8)   State the mailing address and residential address of each applicant and each person signing the application.
      (9)   Submit a recent photograph of each applicant who is a natural person, taken by the Police Department, clearly showing the applicant's face.
      (10)   Submit the fingerprints of each applicant who is a natural person, recorded by the Police Department.
      (11)   For any applicant who is a natural person, describe and identify the location of any tattoos on such person's face, arms, legs, or hands, or any other anatomical area that normally would be visible when such person is on the premises of the proposed sexually oriented business or adult motel.
      (12)   State the driver's license number and social security number of each applicant who is a natural person and each person signing the application, or, for an applicant that is not a natural person, the applicant's Federally-issued tax identification number.
      (13)   Submit proof that each applicant who is a natural person is at least 18 years old.
      (14)   Submit a sketch or diagram showing the configuration of the premises of the sexually oriented business or adult motel, including the location of all stages and customer seating and a statement of total floor space occupied by the business. The diagram shall also designate the place at which the adult business license will be conspicuously posted, if granted. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.
      (15)   If an applicant wishes to operate a sexually oriented business, other than an adult motel, which shall exhibit on the premises, in a booth, as defined in Section 746.02, films, DVDs, video cassettes, other video or image reproduction, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the additional application requirements set forth in Section 746.18(a)(1).
(Ord. 2007-40. Passed 5-7-07.)
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