1395.05 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, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the City. 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, Phoenix, Arizona; Tucson, Arizona: Garden Grove, California; Los Angeles, California; Whittier, California; Indianapolis, Indiana; Minneapolis, Minnesota; St. Paul, Minnesota; New York, New York; Cleveland, Ohio; Oklahoma Township, Oklahoma; Amarillo, Texas; Austin, Texas; Beaumont, Texas; Houston, Texas; and Seattle, Washington.
   (c)   Definitions.
      (1)   “Adult arcade” means any place to which the public is permitted or invited where either or both motion picture machines, projectors, video or laser disc players, or 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”.
      (2)   “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:
         A.   Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which are 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.”
   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.”
      (3)   “Adult cabaret” means a nightclub, bar, restaurant, or similar commercial establishment which regularly features:
         A.   Persons who appear in a “state of nudity” or “state of semi-nudity”;
         B.   Live-performances which are characterized by the exposure of “specified anatomical areas” or by “certified sexual activities”;
         C.   Live entertainment of an erotic nature including exotic dancers, strippers, male or female impersonators, or similar entertainment; or
         D.   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.”
      (4)   “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 depiction or description of “specified sexual activities” or “specified anatomical areas.”
      (5)   “Adult theater” means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or semi-nudity, or live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”
      (6)   “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.
      (7)   “Establishment” means and includes any of the following:
         A.   The opening or commencement of any sexually oriented business as a new business;
         B.   The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business;
         C.   The addition of any sexually oriented business to any other existing sexually oriented business; or
         D.   The relocation of any sexually oriented business.
      (8)   “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.
      (9)   “Nudity” or a “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.
      (10)   “Person” means an individual, proprietorship, partnership, corporation, association. or other legal entity.
      (11)   “Principal business purpose” means forty percent 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.
      (12)   “Seminudity” or “seminude condition” or “seminude” 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.
      (13)   “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.
      (14)   “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.
      (15)   “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 a female breast below a point immediately above the top of the areola.
      (16)   “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 part of or in connection with any of the activities set forth in A. through B. above.
      (17)   “Substantial enlargement” of a sexually oriented business means the increase in floor areas occupied by the business by more than twenty-five percent, as the floor areas exist on the date this amendment takes effect.
   (d)   Classification. Sexually oriented businesses are classified as follows:
      (1)   Adult arcades;
      (2)   Adult bookstores, adult novelty stores, or adult video stores;
      (3)   Adult cabarets;
      (4)   Adult motion picture theaters;
      (5)   Adult theaters;
      (6)   Nude model studios; and
      (7)   Sexual encounter centers.
   (e)   Establishment and Location of Sexually Oriented Businesses.
      (1)   Sexually oriented businesses may be established and located only in accordance with the restrictions contained in divisions (e)(2) through (e)(8) of this section.
      (2)   Sexually oriented businesses may be established and located only in those portions of a U4 Commercial District, U5 Commercial District or U6 Industrial and Manufacturing District that are south of I-90 and west of Babbitt Road.
      (3)   No sexually oriented business may be established or located on a lot any portion of which is within 500 feet of the centerline of East 222nd Street or within 500 feet of the centerline of Babbitt Road.
      (4)   No sexually oriented business may be established or located within 1,000 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 but not limited to 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 defined in the Zoning Ordinance;
         D.   A public park or recreational area 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, wilderness areas, or other similar publicly-owned land within the City under the control, operation, or management of either the City or some other public entity; or
         E.   An entertainment business which is oriented primarily towards children or family entertainment.
      (5)   No sexually oriented business may be established, located or operated within 500 feet of another sexually oriented business.
      (6)   Not more than one sexually oriented business shall be established, located 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.
      (7)   For the purpose of division (e)(3) of this section, measurement shall be made in a straight line, without regard to the intervening structures or objects, from the centerline of the named street to the nearest portion of the lot line.
      (8)   For the purpose of division (e)(4) and (e)(5) 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 lot upon which any building or structure is used as a sexually oriented business, to the nearest portion of the lot upon which is conducted a use listed in division (e)(4) and (e)(5) of this section.
      (9)   For purposes of division (e)(5) of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the intervening structures or objects, from the nearest portion of the lot upon which each business is located.
   (f)   Additional Regulations Concerning Lot, Yard, Height, Parking, Building and Site Design Standards, and Site Development Plan Requirements.
      (1)   Side and rear yard requirements for a sexually oriented business are those specified for the underlying district in Section 1383.05.
      (2)   Front yard regulations for a sexually oriented business are those specified for the underlying district in Chapter 1385.
      (3)   Maximum height regulations for a sexually oriented business are those specified for the underlying height district in Section 1379.01.
      (4)   Parking requirements for a sexually oriented business are governed by the provisions contained in Chapter 1389.
      (5)   Whenever the establishment of a sexually oriented business requires the review of a proposed development or structure or the review of a proposed modification or renovation to an existing structure by the Architectural Review Board as provided for in Chapter 1327, the Architectural Review Board shall render its decision in regards to such review within thirty days of its receipt of a completed application.
         A.   Any denial by the Architectural Review Board of an application under this section may be appealed to the City Planning and Zoning Commission by written notice within ten days of such denial, suspension, or revocation. Unless the applicant requests a longer period, the Planning and Zoning Commission must hold a hearing on the appeal within thirty days and must issue a decision affirming or reversing the denial within five days after the hearing.
         B.   Any decision by the Planning and Zoning Commission shall be a final appealable order, and the applicant may seek prompt judicial review of such administrative action in any court of competent jurisdiction.
         C.   In the event that an applicant seeks judicial review of a decision issued pursuant to this section, the applicant or licensee shall provide written notice of such appeal to the Planning and Zoning Commission in advance of or at the time of the filing of the appeal. Within ten days of receiving such written notice of appeal, or within such shorter time as may be ordered by the court, the Planning and Zoning Commission shall transmit to the court in which appeal was sought a copy of the full administrative record for the matter, including a complete transcript of all the original papers, testimony and evidence offered, heard, and taken into consideration in issuing the final order. The Planning and Zoning Commission and all other departments or agencies of the City shall provide any further information, assistance, or cooperation requested by the reviewing court without delay.
         D.   Subject to the provisions of this section, any applicant lawfully operating a sexually oriented business that is the subject matter of the application prior to the denial of that application may continue to operate said business during the pendency of an appeal of a decision rendered under this section to the Planning and Zoning Commission or to a court.
         E.   In the event that an applicant seeking to establish a new sexually oriented business seeks judicial review of the denial of an application by the Architectural Review Board and such review does not result in a final judicial decision within thirty days of the date the appeal was filed, the City's Zoning Commissioner will issue such applicant a provisional approval of the application upon request of the applicant. The provisional approval will allow an applicant seeking to establish a new sexually oriented business to apply for a sexually oriented business license under this section.
         F.   A provisional approval will expire on whichever of the following three dates is earliest:
            1.   The date that a judicial decision is issued upholding the denial of the application;
            2.   The date on which a non-provisional approval of the application for a new sexually oriented business is issued to the applicant pursuant to a judicial decision overturning the denial of the application; or
            3.   The date one year from the issuance of the provisional approval.
         G.   In the event that judicial review of the denial of an application for a new sexually oriented business is still pending thirty days before the expiration date of a provisional approval, the applicant may request a renewal of the provisional approval from the City's Zoning Commissioner and the City's Zoning Commissioner shall grant a renewal of a provisional approval.
   (g)   Sign Regulations for Sexually Oriented Businesses.
      (1)   All signs for sexually oriented businesses shall be flat wall signs. The maximum allowable sign area shall be one square foot of sign area per foot of lot frontage on a street, but in no event exceeding thirty-two square feet. The maximum number of signs shall be one per lot frontage.
      (2)   Any sign permitted under this section may be illuminated by direct or indirect lighting; however, no sign or any portion of the exterior of a sexually oriented business shall utilize or contain any flashing lights, search lights, or spotlights, or any other similar lighting systems, or any words, lettering, photographs, silhouettes, drawings, or pictorial representations of any manner except to the extent specifically permitted pursuant to division (g)(3) of this section with regard to signs.
      (3)   Signs otherwise permitted pursuant to this section shall contain only the name of the sexually oriented business and/or the type of sexually oriented business conducted on the premises as classified in this subsection.
      (4)   No merchandise or pictures of the products or entertainment on the premises of a sexually oriented business shall be displayed in window areas or any area where they can be viewed from the sidewalk or street in front of the building in which the sexually oriented business is located.
      (5)   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. If any subsection or clause of this section shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining subsections and clauses shall not be affected. All amendments or parts of amendments in conflict with the provisions of this section are hereby repealed.
(Ord. 219-2000. Passed 10-16-00.)