761.03 LOCATION OF SEXUALLY ORIENTED BUSINESSES.

It is the intent of this Chapter to regulate in the specified manner adult entertainment establishments and 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 concentration of sexually oriented businesses within the City and to establish reasonable regulations to prevent the deleterious secondary effects of adult entertainment establishments and 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 of the City in enacting this Chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny, or authorize the denial of, access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of the City in enacting this Chapter to condone or legitimize the distribution or exhibition of obscene material.
(Ord. 10-158. Passed 7-6-10.)

761.02 DEFINITIONS.

In this chapter:

(1) "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 anyone time, and where the images so displayed are distinguished or characterized by the depicting or describing of "specified sexual activities" or "specified anatomical areas".

(2) "Adult bookstore" or "adult video store" means a commercial establishment that has as a significant or substantial portion of its stock-in-trade in, derives a significant or substantial portion of its revenues from, devotes a significant or substantial portion of its interior business or advertising to, or maintains a substantial section of its sales or display space for the sale or rental, for any form of consideration, of books, magazines, periodicals, or other printed matter, or photographic films, motion pictures, video cassettes, compact discs, slides, or other visual representations, that are characterized by their emphasis upon the exhibition or description of specified sexual activities or specified anatomical areas.

(3) "Adult cabaret" means a nightclub, bar, juice bar restaurant, bottle club or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features:

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

(B) Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or

(C) 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 entertainment" means the sale, rental, or exhibition, for any form of consideration, of books, films, video cassettes, magazines, periodicals, or live performances that are characterized by an emphasis on the exposure or display of specified anatomical areas or specified sexual activity.

(5) "Adult entertainment establishment" means an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motion picture theater, nude or seminude model studio, or sexual encounter establishment. An establishment in which a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized therapy, including, but not limited to, massage therapy, as regulated pursuant to R.C. 4731.15, is not an "adult entertainment establishment."

(6) "Adult motel" means a hotel, motel or similar commercial establishment which:

(A) Offers accommodations to the public for any form of consideration; provides patrons with closed circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproduction which is 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 adult type of photographic reproductions; or

(B) Offers a sleeping room for rent for a period of time that is less than 10 hours; or

(7) "Adult motion picture theater" means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas are regularly shown to more than five individuals.

(8) (A) "Adult novelty store" means a commercial establishment that for any form of consideration, has as a significant or substantial portion of its stock-in-trade in, derives a significant or substantial portion of its revenues from, devotes a significant or substantial portion of its interior business or advertising to, or maintains a substantial section of its sales or display space for the sale or rental of any of the following:

(i) Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs or video reproductions, slides, or other visual representations, that are characterized by their emphasis upon the exhibition or description of "specified sexual activities" or "specified anatomical areas"; or

(ii) Instruments, devices, or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse of self or others.

(B) "Adult novelty store" includes a commercial establishment as defined RC. 2907.38. An establishment may have other principal business purposes that do not involve the offering for sale, rental, or viewing of materials exhibiting or describing specified sexual activities or specified anatomical areas and still be categorized as an adult bookstore, adult novelty store, or adult video store. The existence of other principal business purposes does not exempt an establishment from being categorized as an adult bookstore, adult novelty store, or adult video store so long as one of its principal business purposes is offering for sale or rental, for some form of consideration, such materials that exhibit or describe specified sexual activities or specified anatomical areas.

(9) "Adult theater" means a theater, concert hall, auditorium, or similar commercial establishment that, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of "specified sexual activities" or "specified anatomical areas".

(10) "Characterized" means describing the essential character or quality of an item.

(11) "Chief of Police" means the chief of police of the City or his designated agent.

(12) "Distinguished or characterized by their emphasis upon" means the dominant or principal character and theme of the object described by this phrase. For instance, when the phrase refers to films "that are distinguished or characterized by their emphasis upon the exhibition or description of specified sexual activities or specified anatomical areas" the films so described are those whose dominant or principal character and theme are the exhibition or description of specified sexual activities or specified anatomical areas.

(13) "Day(s)" means business days unless otherwise specified.

(14) "Employee" means any individual on a full-time, part-time, or contract basis, regardless of whether the individual is denominated an employee, independent contractor, agent, or otherwise, but does not include an individual exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.

(15) "Escort" means a person who, for consideration, agrees or offers to act as a companion, guide or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.

(16) "Escort agency" means a person or business association who furnishes, offers to furnish, or advertises to furnish escorts as one of its primary business purposes, for a fee, tip, or other consideration.

(17) "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;

(D) The relocation of any sexually oriented business.

(18) "Historic District" means area, place, site, building, structure, object or work of art as designated by the City in accordance with Chapter 1171 of the Codified Ordinances.

(19) "Hospital" means an institution classified as a hospital under R.C. 3701.07, in which are provided to inpatients diagnostic, mescal surgical, obstetrical, psychiatric or rehabilitation care for a: continuous period longer than 24 hours;

(20) "Immediate family" means a person's spouse residing in the person's household, parents, siblings of the whole or of the half blood, and children, including adopted children.

(21) "License" means a license to act or operate a sexually oriented business, issued pursuant to this Chapter.

(22) "Licensee" means a person in whose name a license to operate 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. With respect to an employee license issued under this Chapter, licensee means an employee as defined by Section 761.02(14) above in whose name a license has been issued authorizing employment at sexually oriented business.

(23) (A) "Nude or seminude model studio" means any place where a person who appears in a state of nudity or semi nudity, is provided for money or any other form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.

(B) A modeling class or studio is not a nude or seminude model studio and is not subject to this Chapter if is operated in any of the following ways:

(i) By a college or university supported entirely or partly by taxation;

(ii) By a private college or university that maintains and operates educational programs, the credits for which are transferable to a college or university supported entirely or partly by taxation.

(iii) In a structure that has no sign visible from the exterior of the structure and no other advertising indicating that a person appearing in a state of nudity or seminudity is available for viewing, if in order to participate in a class in the structure, a student must enroll at three days in advance of the class and if not more than one nude or seminude model is on the premises at any onetime

(24) "Nudity" or a "state of nudity" means:

(A) The appearance of a human bare buttock, anus, male genitals, female genitals, or female breast; or

(B) A state of dress which fails to opaquely cover a human buttock, anus, male genitals, female genitals, or areola of the female breast.

(25) "Operates" means to control or hold primary responsibility for the operation of a sexually oriented business, either as a business entity, as an individual, or as part of a group of individuals with shared responsibility. "Operate" or Cause to operate" shall mean to cause to function or to put or keep in operation.

(26) "Operator" means any individual on the premises of a sexually oriented business who causes the business to function or who puts or keeps in operation the business or who is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business.

(27) "Patron" means any individual on the premises of a sexually oriented business, except for any of the following:

(A) An operator or an employee of the sexually oriented business;

(B) An individual who is on the premises exclusively for repair or maintenance of the premises or for the delivery of goods to the premises;

(C) A public employee or a volunteer firefighter emergency medical services worker acting within the scope of the public employee's or volunteer's duties as a public employee or volunteer's duties as a public employee or volunteer.

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

(29) "Premises" means the real property on which the sexually oriented business is located and all appurtenances to the real property, including, but not limited, to the sexually oriented business, the grounds, private walkways, and parking lots or parking garages adjacent to the real property under the ownership, control, or supervision of the owner or operator of the sexually oriented business.

(30) "Public building" means any building owned, leased or held by the United States, the state, the county, the city, any special district, school district, or any other agency or political subdivision of the state or the United States, which building is used for governmental purposes.

(31) "Public park" or "recreation area" means public land which has been designated for park or recreation activities including but not limited to a park; playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian/bicycle paths, open space, wilderness areas, or similar public land within the City.

(32) "Regularly features" or "regularly shown" means a consistent or substantial course of conduct, such that the films or performances exhibited constitute a substantial portion of the films or performances offered as a part of the ongoing business of the adult entertainment establishment.

(33) "Religious institution" means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.

(34) "Residential district" means a single-family, duplex, townhouse, multiple family or mobile home zoning district.

(35) "School" means any public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intimidate schools and high schools.

(36) "Semi-nude" means a state of dress in which opaque clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.

(37) "Sexual device" means any three-dimensional object designed and marketed for stimulation of the male or female human genitals or anus or female breasts or for sadomasochistic use or abuse of oneself or others, including but not limited to, dildos, vibrators, penis pumps, and physical representations of the human genital organs, but not including devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.

(38) "Sexual device shop" means a commercial establishment that regularly features sexual devices, but not including any pharmacy, drug store, medical clinic, or establishment primarily dedicated to providing medical or healthcare products or services, and not including any commercial establishment that does not restrict access to its premises by reason of age.

(39) (A) "Sexual encounter establishment" means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration a place where either of the following occur:

(i) Two or more persons may congregate, associate, or consort for the purpose of engaging in specified sexual activities.

(ii) Two or more persons appear nude or seminude for the purpose of displaying their nude or seminude bodies for their receipt of consideration or compensation in any type or form.

(B) An establishment in which a medical practitioner, psychologist, psychiatrist, or similar professional person licensed by the state engages in medically approved and recognized therapy, including, but not limited to, massage therapy, as regulated pursuant to RC. 4731.15, is not a "sexual encounter establishment."

(40) "Sexually oriented business" means an adult arcade, adult bookstore, adult cabaret, adult entertainment establishment, adult motion picture theater, adult novelty store, adult theater, adult video store, sexual device shop, sexual encounter center, sexual encounter establishment, escort agency and adult motel as defined by Section 761.02 of this Chapter, but does not include a business solely by reason of its showing, selling, or renting materials that may depict sex.

(41) "Specified anatomical areas" means human genitals, pubic region, and buttocks and the human female breasts below the point immediately above the top of areola.

(42) "Specified criminal activity" means any of the following offenses:

(A) 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;

(B) For which:

(i) 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

(ii) 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.

(C) The fact that a conviction is being appealed shall not prevent such conviction from constituting a specified criminal activity as defined in this section.

(43) "Specified sexual activities" means sexual intercourse, oral copulation, masturbation, or sodomy, or excretory functions as a part of or in connection with any of these activities.

(44) "Substantial enlargement" of a sexually oriented business means the increase in floor area occupied by the business by more than 25 percent, as the floor area exists on March 1,2010.

(45) "Transfer of ownership or control" of a sexually oriented business shall mean any of the following:

(A) The sale, lease, or sublease of the business;

(B) The transfer of securities which constitute a controlling interest in the business whether by sale, exchange, or similar means; or

(C) 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. 10-158. Passed 7-6-10.)

761.03 LOCATION OF SEXUALLY ORIENTED BUSINESSES.

(a) A person commits an offense if he operates or causes to be operated a sexually oriented business within 750 feet of:

(1) A religious institution

(2) A public or private school;

(3) A boundary of a residential or historic district as defined in this chapter;

(4) A public park or recreation area;

(5) A public building or hospital; or

(6) The property line of a lot included within a residential district as defined in this chapter.

(b) A person commits an offense if he causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or control of a sexually oriented business within 500 feet of another sexually oriented business. A person commits an offense if he causes or permits the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or portion thereof, or the increase of floor area of any sexually oriented business in any building, structure, or portion thereof containing another sexually oriented business.

(c) For the purposes of subsection (a), measurement shall be made in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as a part of the premises where a sexually oriented business is conducted, to the nearest property line of the premises of a religious institution, public or private school, public building or hospital or to the nearest boundary of an affected public park, residential district, or residential lot.

(d) For purposes of subsection (b), the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.

(e) Any sexually oriented business lawfully operating on March 1, 2010 that is in violation of subsection (a), (b) or (c) shall be deemed a nonconforming use. The nonconforming use will be permitted to continue unless terminated for any reason or voluntarily discontinued for a period of two years or more. Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually oriented businesses are within 1000 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and continually operating at a particular location is the conforming use and the later established business(es) is nonconforming.
(Ord. 10-158. Passed 7-6-10.)

761.04 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, with the exception of an adult bookstore, adult video store, adult novelty store, or sexual device shop, retain the services of a person as an employee who is not licensed as a sexually oriented business employee by the City pursuant to this Chapter.

(b) A violation of sub-section (a)(2) above shall be a ground for the suspension of a sexually oriented business license as provided for in Section 761.10 of this Chapter.

(c) No person shall act as an employee on the premises of a sexually oriented business, with the exception of an adult bookstore, adult video store, adult novelty store, or sexual device shop, without having secured a sexually oriented business employee license ("employee license") pursuant to this Chapter.
(Ord. 10-158. Passed 7-6-10.)

761.05 APPLICATION FOR LICENSE.

(a) An original or renewal application for a sexually oriented business license shall be submitted to the City on a form provided by the Bureau of Buildings, Inspections, Licenses and Permits ["Codes & Permits"]. The City's application may require 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) A filing fee shall be paid at the time of filing the application, as follows:

Operator License - Three Hundred Dollars ($300.00).

Employee License - Fifty Dollars ($50.00)

(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 fifty (50) percent 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.

(d) 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.

(e) An application for a sexually oriented business license shall be completed according to the instructions on the application form, which shall require the following:

(1) If the applicant is:

(i) An individual, state the legal name and any aliases of such individual; or

(ii) 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

(iii) 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

(iv) 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 capacities 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 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 this Chapter 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 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, or fifty (50) percent 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 location of the proposed sexually oriented business, including a legal description of the property (i.e., permanent parcel number), street address, and telephone number(s), if any.

(7) State the business mailing address of each applicant and each person signing the application.

(8) If the applicant is a natural person permission to access and utilize the applicant's photograph currently on file with Ohio Bureau of Motor Vehicles.

(9) If the applicant is a natural person submit a Webcheck (i.e. fingerprints and criminal record).

(10) 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.

(11) State the driver's license number and/or state identification number if the applicant is a natural person or if an applicant that is not a natural person, the applicant's federally issued tax identification number.

(12) Submit proof that each applicant who is a natural person is at least eighteen (18) years old.

(13) The above-required disclosures facilitate the police investigation into the applicant's criminal background regarding crimes of a sexual nature so that the City can determine whether the Chapter's civil disabilities provisions apply. Such provisions exist to combat the sex crimes connected with sexually oriented establishments by temporarily prohibiting those recently convicted of such crimes from employment with those establishments. In addition, the required disclosures ensure continuing compliance with the Chapter's licensing and permitting requirements.

(14) The information gathered pursuant to the above provisions constitute protected private information and are exempt from Ohio's Public Records Act.

(15) A site diagram showing the configuration of the premises of the sexually oriented 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 (6) inches.
(Ord. 10-158. Passed 7-6-10.)

761.06 ISSUANCE OF A LICENSE.

(a) Upon receipt of an application for a sexually oriented business license, the Codes & Permits Department shall promptly request that the Mansfield Police Department review the information provided in the application concerning the criminal background of the applicant(s) and that the Mansfield Police Department shall transmit the results of its investigation in writing to the Codes & Permits Department within five (5) days of the completion of its investigation.

(b) Within five (5) days of receipt of an application for a sexually oriented business, the Codes & Permits Department shall notify the Fire Chief and the Mansfield/Ontario/Richland County Health Department of such application. In making such notification, the Codes & Permits Department shall request that the Fire Chief and Health Department promptly inspect the premises for which the sexually oriented business license is sought to assess compliance with the regulations under their respective jurisdictions.

(c) The Fire Chief shall provide to the Codes & Permits Department a written certification of whether the premises are in compliance with City and State Fire Regulations within ten (10) days of receipt of notice of the application.

(d) The Codes & Permits Department shall commence the inspection of the premises for which a sexually oriented business license is sought promptly upon receipt of the application, and shall complete, within ten (10) days after receipt of the application, a written certification of whether the premises are in compliance with the City's Zoning Ordinance, the City's Property Maintenance Code, and the provisions of this Chapter related to physical characteristics of the premises, and whether the City has received notice from any state or county agency of the premises being in violation of any applicable state building or property codes.

(e) Within twenty-one (21) days after receipt of a completed sexually oriented business license application, the Codes & Permits Department shall approve or deny the issuance of a license. The Codes & Permits Department shall approve the issuance of a license to an applicant unless he/she determines that one or more of the following findings is true:

(1) An applicant who is a natural person is under eighteen (18) years of age.

(2) An applicant has failed to provide all information and documents required for issuance of the license as requested on the application form, or has provided information or documents as requested on the application that are insufficient on their face; provided, however, that no license shall be denied solely on the ground that an applicant has refused to disclose its social security number in accordance with the provisions of the Privacy Act of 1974, Pub. L. No. 93-579, § 7(a)(l).

(3) An applicant has, within the preceding twelve (12) months, been denied a sexually oriented business license by any jurisdiction or has had a license to operate a sexually oriented business revoked by any jurisdiction.

(4) An applicant has been convicted of a specified criminal activity as defined in this Chapter.

(5) The proposed sexually oriented business would violate or fail to be in compliance with any provisions of this Chapter, the City Zoning Ordinance, the City Property Maintenance Code, or state statute or regulation.

(6) The application and investigation fee required by this Chapter has not been paid.

(7) An applicant is in violation of or not in compliance with any provision of this except as provided in paragraph (f) of this section.

(f) A sexually oriented business license shall state on its face the name of the applicant, the expiration date, and the address of the licensed sexually oriented business. All sexually oriented business licenses shall be posted in a conspicuous place at or near the entrance to the business so that they may be easily read at any time.

(g) The Codes & Permits Department shall advise the applicant in writing within three (3) days of the Department's decision of the reasons for any license denial. If the City finds, subsequent to denial, that the basis for the denial of the license has been corrected or abated, the applicant may reapply.
(Ord. 10-158. Passed 7-6-10.)

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