(A) Findings. The facts and other matters set forth in the “Whereas” clauses that form the preamble to Ordinance 2006-4 are hereby adopted as findings of fact in support of the legislative action of the city in adopting this amendment to the Zoning Ordinance. Upon adoption of this zoning amendment, these shall be incorporated into the Zoning Code by reference to the adopting resolution.
(B) Definitions. For the purpose of this section, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CABARET or THEATER, SEXUALLY ORIENTED. A building or portion of a building which provides or allows the provision of sexually oriented entertainment to its customers or which holds itself out to the public as an establishment where sexually oriented entertainment is available. Signs, advertisements or an establishment name including verbal or pictorial allusions to sexual stimulation or gratification or by references to “adult entertainment,” “strippers,” “showgirls,” “exotic dancers,” “gentleman’s club,” “XXX” or similar terms, shall be considered evidence that an establishment holds itself out to the public as an establishment where sexually oriented entertainment is available.
CUSTOMER. Any person who:
(a) Is allowed to enter a business in return for the payment of an admission fee or any other form of consideration or gratuity; or
(b) Enters a business and purchases, rents, or otherwise partakes of any material, merchandise, goods, entertainment, or other services offered therein; or
(c) Enters a business other than as an employee, vendor, service person, or delivery person.
DAYCARE CENTER. A licensed facility providing care, protection and supervision for children 12 years old or younger or for any individual who is deemed mentally challenged.
DISPLAY PUBLICLY. The act of exposing, placing, posting, exhibiting, or in any fashion displaying in any location, whether public or private, an item in such a manner that it may be readily seen and its content or character distinguished by normal unaided vision viewing it from a street, highway, or public sidewalk, or from the property of others or from any portion of the premises where items and material other than sexually oriented media are offered for sale or rent to the public.
ENCOUNTER CENTER, SEXUALLY ORIENTED. A business or enterprise that, as one of its principal purposes, offers: physical contact between two or more persons when one or more of the persons is in a state of nudity or semi-nudity.
ENTERTAINER, SEXUALLY ORIENTED. Any person paid as an employee, contractor, subcontractor, or agent of the operator of a cabaret who frequently appears in a state of semi-nudity at any establishment regulated by this chapter.
ENTERTAINMENT, SEXUALLY ORIENT ED. Any of the following activities, when performed by a sexually oriented entertainer at a sexually oriented business that is required to be licensed: dancing, singing, talking, modeling (including lingerie or photographic), gymnastics, acting, other forms of performing, or individual conversations with customers for which some type of remuneration is received.
ESCORT. A person who is held out to the public to be available for hire for monetary consideration in the form of a fee, commission, or salary, and who for said consideration consorts with or accompanies or offers to consort with or accompany, another or others to or about social affairs, entertainments, or places of amusement or within any place of public resort or within any private quarters, and shall include a “service oriented escort;” for purposes of this ordinance, the term “escort” shall not include any person who would be understood by a reasonably prudent person as providing “babysitting” services or working as an assisted living companion to the elderly, hrfirm, disabled, or handicapped, and shall further not include licensed health professionals.
ESCORT, SERVICE ORIENTED. An escort that:
(a) Operates from an open office;
(b) Does not advertise that sexual conduct will be provided to the patron or work for an escort bureau that so advertises; and
(c) Does not offer to provide sexual conduct.
ESCORT BUREAU, SERVICE ORIENTED. An escort bureau that:
(a) Maintains an open office at an established place of business;
(b) Otherwise operates in mil accordance with the countywide licensing ordinance, Kenton County Ordinance No. 451.9, establishing licensing requirements for sexually oriented businesses and service oriented escort bureaus, as such ordinance may be amended from time to time.
ESCORT, SEXUALLY ORIENTED. An escort who:
(a) Works for (either as an agent, employee, or independent contractor), or is referred to a patron by a sexually oriented escort bureau; or
(b) Either advertises that sexual conduct will be provided, or works for (either as an employee, agent, or independent contractor), or is referred to a patron by an escort bureau that so advertises; or
(c) Offers to provide or does provide acts of sexual conduct to an escort patron, or accepts an offer or solicitation to provide acts of sexual conduct for a fee from an escort patron or a prospective escort patron.
ESCORT BUREAU, SEXUALLY ORIENTED. An escort bureau that operates in any of the following manners:
(a) Engages in fraudulent, misleading, or deceptive advertising that is designed to make the prospective client believe that acts of prostitution (as defined under Kentucky law) will be provided; or
(b) Collects money (whether paid in advance or paid after the promised proscribed act) for the promise of acts of prostitution by its escorts; or
(c) Uses as escorts persons known to have violated the law regarding prostitution, and refuses to cease the use of such a person; or
(d) Operates an escort bureau as a “call girl” prostitution operation; or
(e) Advertises that sexual conduct will be provided to a patron or customer, or that escorts which provide such sexual conduct will be provided, referred, or introduced to a patron or customer; or
(f) Solicits, offers to provide, or does provide acts of sexual conduct to an escort patron or customer; or
(g) Employs or contracts with a sexually oriented escort, or refers or provides to a patron a sexually oriented escort.
ESTABLISHMENT. Any business regulated by this section.
EXPLICIT SEXUAL MATERIAL. Any pictorial or three dimensional material depicting human masturbation, deviate sexual intercourse, sexual intercourse, direct physical stimulation of unclothed genitals, sadomasochistic abuse, or emphasizing the depiction of posf-pubertal human genitals; provided, however, that works of art or material of anthropological significance shall not be deemed to fall within the foregoing definition.
FLOOR AREA, GROSS PUBLIC. The total area of the building accessible or visible to the public, including showrooms, motion picture theaters, motion picture arcades, service areas,
behind-counter areas, storage areas visible from such other areas, restrooms (whether or not labeled public”), areas used for cabaret or similar shows (including stage areas), plus aisles, hallways, and entryways serving such areas.
FREQUENTLY. Two or more times per month.
MASSAGE. Touching, stroking, kneading, stretching, friction, percussion, and vibration, and includes holding, positioning, causing movement of the soft tissues and applying manual touch and pressure to the body (excluding an osseous tissue manipulation or adjustment).
MASSAGE PARLOR. Any business offering massages that is operated by a person who is not a state licensed “massage therapist” or that provides massages by persons who are not state licensed massage therapists.
MASSAGE THERAPY. The profession in which a certified massage therapist applies massage techniques with the intent of positively affecting the health and well being of the client.
MASSAGE THERAPIST. A person licensed as a massage therapist in accordance with the provisions of Kentucky Rev. Statues § 309.350 et seq.
MEDIA. Anything printed or written, or any picture, drawing, photograph, motion picture, film, videotape or videotape production, or pictorial representation, or any electrical or electronic reproduction of anything that is or may be used as a means of communication. Media includes but shall not necessarily be limited to books, newspapers, magazines, movies, videos, sound recordings, CD-ROMS, DVDs, other magnetic media, and undeveloped pictures.
MEDIA, SEXUALLY ORIENTED. Magazines, books, videotapes, movies, slides, CDs, DVDs or other devices used to record computer images, or other media which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to “specified sexual activities” or “specified anatomical areas.”
MEDIA STORE WITH SOME SEXUALLY ORIENTED MEDIA. A retail book, video or other media store that has sexually explicit media that constitutes more than 10% but not more than 40% of its inventory or that occupies more than 10 percent but not more than 40% of its gross public floor area.
MEDIA STORE, SEXUALLY ORIENTED. An establishment that rents and/or sells sexually oriented media, and that meets any of the following three tests:
(a) More than 40% of the gross public floor area is devoted to sexually oriented media; or
(b) More than 40% of the stock in trade consists of sexually oriented media; or
(c) It advertises or holds itself out in any forum as a “XXX,” “adult” or “sex” business, or otherwise as a sexually oriented business, other than sexually oriented media outlet, sexually oriented motion picture theater, or sexually oriented cabaret.
MODELING STUDIO, SEXUALLY ORIENTED. An establishment or business that provides the services of live models modeling lingerie, bathing suits, or similar wear to individuals, couples, or small groups in a space smaller than 600 feet.
MOTEL, SEXUALLY ORIENTED. A hotel, motel, or similar commercial establishment that meets any of the following criteria:
(a) Offers accommodations to the public for any form of consideration and provides patrons with sexually oriented entertainment or transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas;”
(b) Marketed as or offered as “adult;” “XXX,” “couples,” or “sexually oriented.”
MOTION PICTURE ARCADE, SEXUALLY ORIENTED. A building or portion of a building wherein coin-operated, slug-operated, or for any other form of consideration, electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, or other image-producing devices are maintained to show images of “specified sexual activities” or “specified anatomical areas.”
MOTION PICTURE ARCADE BOOTH, SEXUALLY ORIENTED. Any booth, cubicle, stall, or compartment that is designed, constructed, or used to hold or seat customers and is used for presenting motion pictures or viewing publications by any photographic, electronic, magnetic, digital, or other means or medium (including, but not limited to, film, video or magnetic tape, laser disc, CD-ROMs, books, DVDs, magazines or periodicals) to show images of “specified sexual activities” or “specified anatomical areas” for observation by customers therein. The term “booth,” “arcade booth,” “preview booth,” and “video arcade booth” shall be synonymous with the term “motion picture arcade booth.”
MOTION PICTURE THEATER, SEXUALLY ORIENTED. a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are frequently shown that are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas” or that are marketed as or offered as “adult,” “XXX,” or sexually oriented. Frequently shown films, motion pictures, videocassettes, slides or other similar photographic reproductions as characterized herein do not include sexually oriented speech and expressions that take place inside the context of some larger form of expression.
NUDE MODELING STUDIO. Any place where a person who appears in a state of nudity or semi-nudity and is 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 proprietary school licensed by the Commonwealth of Kentucky or a college, junior college, or university supported entirely or in part by public taxation; a private college or university that maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation.
NUDITY OR STATE OF NUDITY. The showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the areola or nipple, or the showing of the covered male genitals in a discernibly turgid state. See, also SEMI-NUDE.
OPERATOR. Any person operating, conducting, or maintaining a business regulated under this chapter.
OWNER(S). The individual owner of an establishment, or if the legal owner is a corporation, partnership, or limited liability company, the term shall include all general partners, any limited partner with a financial interest of 10% or more, all corporate officers and directors, and any shareholder or member with a financial interest of 10% or more. OWNER includes the spouse(s) of any of the above individuals.
PERSON. An individual, firm, partnership, joint-venture, association, independent contractor, corporation (domestic or foreign), limited liability company, trust, estate, assignee, receiver or any other group or combination acting as a unit.
PREMISES. The physical location at which a business operates; as used in this chapter, the term shall include all parts of that physical location, both interior and exterior, which are under the control of the subject business, through ownership, lease or other arrangement.
PRIMARY ENTERTAINMENT. Entertainment that characterizes the establishment, as determined (if necessary) from a pattern of advertising as well as actual performances.
PROTECTED LAND USE. Residential zoning district, school, religious institution, park, library, public recreation area, or day care center.
PUBLIC AREA. A portion of a sexually oriented business, excluding sexually oriented motels, that is accessible to the customer, excluding restrooms, while the business is open for business.
SADOMASOCHISTIC PRACTICES. Flagellation or torture by or upon a person clothed or naked, or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed or naked.
SEMI-NUDE OR IN A SEMI-NUDE CONDITION. the showing 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 apparel, provided the areola is not exposed in whole or in part.
SEX SHOP. An establishment offering goods for sale or rent and that meets any of the following tests:
(a) It offers for sale items from any two of the following categories: sexually oriented media; lingerie; leather goods marketed or presented in a context to suggest their use for sadomasochistic practices; and the combination of such items constitute more than 10% of its stock in trade or occupies more than 10% of its floor area;
(b) More than 5% of its stock in trade consists of sexually-oriented toys or novelties; or
(c) More than 5% of its gross public floor area is devoted to the display of sexually oriented toys or novelties.
SEXUALLY ORIENTED BUSINESS. An inclusive term used to describe collectively the following businesses: sexually oriented cabaret or theater; sexually oriented entertainment; sexually oriented motion picture theater; sexually oriented motion picture arcade; sexually oriented encounter center; sexually oriented media store; sexually oriented escort bureau; bathhouse; massage parlor; sex shop; sexually oriented modeling studio; or any other such business establishment whose primary purpose is to offer sexually oriented entertainment or materials. This collective term does not describe a specific land use and shall not be considered a single use category for purposes of the County or any applicable municipal zoning code or other applicable ordinances.
SEXUALLY ORIENTED BUSINESS LICENSE. Any license applied for under the countywide licensing ordinance, Kenton County Ordinance No. 451.9, establishing licensing requirements for sexually oriented businesses and service oriented escort bureaus, adopted in 2004.
SEXUALLY ORIENTED TOYS OR NOVELTIES. Instruments, devices, or paraphernalia either designed as representations of human genital organs or female breasts or designed or marketed primarily for use to stimulate human genital organs.
SPECIFIED ANATOMICAL AREAS. Include:
(a) Less than completely and opaquely covered human genitals, pubic region, or the areola or nipple of the female breast; and
(b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered; and
(c) Areas of the human anatomy included in the definitions of “nude” or “nudity.”
SPECIFIED SEXUAL ACTIVITIES. Acts of human masturbation, sexual intercourse, or sodomy. These activities include, but are not limited to the following: bestiality, erotic or sexual stimulation with objects or mechanical devices, acts of human analingus, cunnilingus, fellatio, flagellation, masturbation, sadism, sadomasochism, sexual intercourse, sodomy, or any excretory functions as part of or in connection with any of the activities set forth above with any person on the premises. This definition shall include apparent sexual stimulation of another person’s genitals whether clothed or unclothed.
(C) Prohibited uses - countywide. The following uses are prohibited in the city and county-wide under Kenton County Ordinance No. 451.9, establishing licensing requirements for sexually oriented businesses and service oriented escort bureaus:
(1) Sexually oriented encounter center;
(2) Sexually oriented escort bureau;
(3) Sexually oriented massage parlor or any business offering massages that is operated by a person who is not licensed as a massage therapist in accordance with the provisions of KRS 309.350 et seq.;
(4) Sexually oriented modeling studio;
(5) Sexually oriented motel;
(6) Sexually oriented motion picture arcade or booth; and
(7) Sexually oriented nude modeling studio.
(D) Other uses prohibited. Because there are no suitable sites for such sexually oriented businesses or, in accordance with the recommendations of the consultants to Kenton County, the following additional uses are prohibited:
(1) Sexually oriented media store;
(2) Sex shop;
(3) Service oriented escort bureau;
(4) Sexually oriented motion picture theatre; and
(5) Sexually oriented cabaret or theatre.
(E) Standards for a media store with some sexually oriented media. A retail book, video or other media store that has sexually explicit media that constitutes more than 10% but not more than 40% of its inventory or that occupies more than 10% but not more than 40% of its gross public floor area shall not be classified as a sexually oriented business but shall be subject to the following standards:
(1) Separate room. The sexually explicit media shall be kept in a separate room from the rest of the inventory of the store and shall not visible outside the room;
(2) Age limit. Sexually explicit media shall be available only to persons 18 years or older;
(3) Access. Access to the room shall be through a solid door, accessed by an electronic control device monitored by the clerk or manager on duty through direct visual control;
(4) Visibility. Customers and activities in the room shall be visible at all times to the clerk or manager on duty through a video system located at the clerk’s or manager’s counter; and
(5) Lighting. The area occupied by customers shall be well lit at a lighting level of least 30 foot-candles measured three feet from the floor.
(Ord. 2006-4, passed 6-8-2006)