1271.02 DEFINITIONS.

(a) Purpose. It is the purpose of this chapter to regulate sexually oriented businesses and related activities 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 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 nor 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 materials.

(b) Findings. The City Council has received substantial evidence concerning the association of negative secondary effects with sexually oriented businesses 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); Arcara v. Cloud Books, Inc., 478 U.S. 697, (1986); California v. LaRue, 409 U.S. 109 (1972); Iacobucci v. City of Newport, Ky, 479 U.S. 92 (1986); United States v. O'Brien, 391 U.S. 367 (1968); DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir.1997); Key, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir.1986); Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir.1995); and South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir.1984), as well as studies conducted in other cities including, but not limited to, Phoenix, Arizona; Minneapolis, Minnesota; Houston, Texas; Indianapolis, Indiana; Amarillo, Texas; Garden Grove, California; Los Angeles, California; Whittier, California; Austin, Texas; Seattle, Washington; Oklahoma City, Oklahoma; Cleveland, Ohio; and Beaumont, Texas; and findings reported in the Final Report of the Attorney General's Commission on Pornography (1986), the Report of the Attorney General's Working Group On the Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota), and statistics obtained from the U.S. Department of Health and Human Services, Centers for Disease Control and Prevention.

(Ord. 2852. Passed 10-25-04.)

(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 or describing of "specified sexual activities" or "specified anatomical areas."

(b) "Adult Bookstore" or "Adult Video Store" means a commercial establishment that, 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 picture, video cassettes or video reproductions, slides, or other visual representations that depict or describe "specified sexual activities" or "specified anatomical areas"; or

(2) Instruments, devices, or paraphernalia that 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" or "Adult Video Store". Such other business purposes will not serve to exempt such commercial establishments from being categorized as an "Adult Bookstore" 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 that depict or describe "specified sexual activities" or "specified anatomical areas." A principal business purpose need not be a primary use of an establishment so long as it is a significant use based upon the visible inventory or commercial activity of the establishment.

(1) Persons who appear in a state of nudity or semi-nudity; or

(2) Live performances that are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities"; or

(3) Films, motion pictures, video cassettes, digital cassette discs (DVD), slides, or other photographic reproductions that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas"; or

(4) Persons who engage in erotic dancing or performances that are intended for the sexual interests or titillation of an audience or customers.

(d) "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 that are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

(e) "Adult Theater" means a theater, concert hall, auditorium, or similar commercial establishment that regularly features persons who appear, in person, in a state of nudity and/or semi-nudity, and/or live performances that are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities."

(f) "Employee" means a person who performs any service on the premises of a sexually oriented business on a full time, part time, contract basis, or independent basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise, and whether or not the 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, nor does "employee" include a person exclusively on the premises as a patron or customer.

(g) "Licensee" means a person in whose name a license has been issued, as well as the individual listed as an applicant on the application for a license.

(h) "Nudity" means the appearance of a human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals, or vulva, with less than a fully opaque covering; or a female breast with less than a fully opaque covering of any part of the nipple; or human male genitals in a discernibly turgid state even if completely and opaquely covered.

(i) "Person" means an individual, proprietorship, partnership, corporation, association, or other legal entity.

(j) "Premises" means the real property upon which the sexually oriented business is located, and all appurtenances thereto and buildings thereon, including, but not limited to, the sexually oriented business, the grounds, private walkways, and parking lots and/or parking garages adjacent thereto, under the ownership, control, or supervision of the licensee, as described in the application for a business license;

(k) "Semi-Nude" means the appearance of the female breast below a horizontal line across the top of the areola at its highest point. 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.

(l) "Sexually Oriented Business" means an adult arcade, adult bookstore or adult video store, adult cabaret, adult motion picture theater, or adult theater.

(m) "Specified Anatomical Areas" means:

(1) The human male genitals in a discernibly turgid state, even if fully and opaquely covered;

(2) 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.

(n) "Specified Criminal Activity" means any of the following offenses:

(1) Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution, or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; sexual assault; molestation of a child; or any similar sex-related offenses to those described above under the criminal or penal code of this state, or other states.

(2) For which:

A. Less than one year has 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;

B. Less than five 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 felony offense;

(3) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant or a person residing with the applicant.

(o) "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, whether covered or uncovered;

(2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy;

(3) Masturbation, actual or simulated; or

(4) Excretory functions as part of or in connection with any of the activities set forth in (1) through (3) above.

(p) "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 that form 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 that 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. 2852. Passed 10-25-04.)

1271.03 CLASSIFICATION.

Sexually oriented businesses are classified as follows:

(a) Adult arcades;

(b) Adult bookstores or adult video stores;

(d) Adult motion picture theaters;

(e) Adult theaters.

(Ord. 2852. Passed 10-25-04.)

1271.04 LICENSE REQUIRED

(a) It shall be unlawful for any person to operate a sexually oriented business without a valid sexually oriented business license issued by the Zoning Administrator pursuant to this chapter. Violation of this provision shall constitute a misdemeanor of the first degree.

(b) An application for a sexually oriented business license must be made on a form provided by the City. The application must be accompanied by a sketch or a diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but 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. Prior to issuance of a license, the premises must be inspected by the health department, fire department, building department, and zoning department.

(c) All applicants for a license must be qualified according to the provisions of this chapter. The application may request, and the applicant shall provide, such information (including fingerprints) as to enable the City to determine whether the applicant meets the qualifications established under this chapter. The applicant has an affirmative duty to supplement an application with new information received subsequent to the date the application was deemed completed.

(d) If a person who wishes to own or operate a sexually oriented business is an individual, he or she must sign the application for a business license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each individual who has a twenty percent (20%) or greater interest in the business must sign the application for a business license as applicant. If a corporation is listed as owner of a sexually oriented business or as the entity that wishes to operate such a business, each individual having a twenty percent (20%) or greater interest in the corporation must sign the application for a business license as applicant.

(e) Applications for a business license, whether original or renewal, must be made to the Zoning Administrator by the intended operator of the enterprise. Applications must be submitted to the office of the Zoning Administrator or the Zoning Administrator's designee during regular working hours. Application forms shall be supplied by the Zoning Administrator. The following information shall be provided on the application form:

(1) The name, street address (and mailing address if different) of the applicant(s);

(2) A recent photograph of the applicant(s);

(3) The applicant's driver's license number, Social Security number, and/or his or her state or federally issued tax identification number;

(4) The name under which the adult oriented business is to be operated and a general description of the services to be provided. If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, he or she must state the sexually oriented business's fictitious name and submit the required registration documents;

(5) Whether the applicant has been convicted, or is awaiting trial on pending charges, of a "specified criminal activity" as defined by this chapter, and, if so, the "specified criminal activity" involved, the date, place, and jurisdiction of each;

(6) Whether the applicant has had a previous license under this chapter or other similar sexually oriented business ordinance from another city or county denied, suspended or revoked, including the name and location of the sexually oriented business for which the business license was denied, suspended or revoked, as well as the date of the denial, suspension or revocation, and whether the applicant or a person residing with the applicant is or has been a partner in a partnership or an officer, director or principal stockholder of a corporation that is or was licensed under a sexually oriented business ordinance whose business license has previously been denied, suspended or revoked, including the name and location of the sexually oriented business for which the business license was denied, suspended or revoked as well as the date of denial, suspension or revocation;

(7) Whether the applicant holds any other licenses under this chapter or other similar sexually oriented business ordinance from another city or county and, if so, the names and locations of such other licensed businesses;

(8) The single classification of license, as found in Section 1271.04, for which the applicant is filing;

(9) The telephone number of the adult oriented business;

(10) The address and legal description of the tract of land on which the adult oriented business is to be located;

(11) If the adult oriented business is in operation, the date on which the owner(s) acquired the adult oriented business for which the business license is sought, and the date on which the adult oriented business began operations as a sexually oriented business at the location for which the business license is sought;

(12) If the adult oriented business is not in operation, the expected startup date (which shall be expressed in number of days from the date of issuance of the business license). If the expected startup date is to be more than ten days following the date of issuance of the business license, then a detailed explanation of the construction, repair or remodeling work or other cause of the expected delay and a statement of the owner's time schedule and plan for accomplishing the same;

(13) If an applicant wishes to operate a sexually oriented business, which shall exhibit on the premises, in a viewing room or booth of less than 150 square feet of floor space, films, video cassettes, other video reproductions, or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the application requirements set forth in this chapter.

(f) Each application for a business license shall be accompanied by the following:

(1) Payment of the application fee in full;

(2) If the adult oriented business is a State of Ohio corporation, a certified copy of the articles of incorporation, together with all amendments thereto;

(3) If the adult oriented business is a foreign corporation, a certified copy of the certificate of authority to transact business in this state, together with all amendments thereto;

(4) If the adult oriented business is a limited partnership formed under the laws of the State of Ohio, a certified copy of the certificate of limited partnership, together with all amendments thereto;

(5) If the adult oriented business is a foreign limited partnership, a certified copy of the certificate of limited partnership and the qualification documents, together with all amendments thereto;

(6) Proof of the current fee ownership of the tract of land on which the adult oriented business is to be situated in the form of a copy of the recorded deed;

(7) If the persons identified as the fee owner(s) of the tract of land in item (6) are not also the owners of the adult oriented business, then the lease, purchase contract, purchase option contract, lease option contract or other document(s) evidencing the legally enforceable right of the owners or proposed owners of the adult oriented business to have or obtain the use and possession of the tract or portion thereof that is to be used for the adult oriented business for the purpose of its operation;

(8) Any of items (2) through (9), above shall not be required for a renewal application if the applicant states that the documents previously furnished the Zoning Administrator with the original application or previous renewals thereof remain correct and current.

(g) Every application for a license shall contain a statement under oath that:

(1) The applicant has personal knowledge of the information contained in the application, and that the information contained therein and furnished therewith is true and correct; and,

(2) The applicant has read the provisions of this article.

(h) A separate application and business license shall be required for each sexually oriented business classification as set forth in Section 1271.03.

(i) The fact that a person possesses other types of state or city permits and/or licenses does not exempt him from the requirement of obtaining a sexually oriented business or employee license.

(Ord. 2852. Passed 10-25-04.)

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