§ 118.02  DEFINITIONS.
   For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
   ADULT BOOKSTORE.  An establishment having as a substantial or significant portion of its stock in trade, books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas or an establishment with a segment or section devoted to the sale or display of such material.
   ADULT ENTERTAINMENT CABARET.  A public or private establishment which features topless or nude dancers and/or waitresses, strippers, male or female impersonators and/or similar entertainers.
   ADULT ENTERTAINMENT CENTER.  An enclosed building with the capacity for less than 50 persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
   ADULT GIFT SHOP.  An establishment having as a substantial or significant portion of its stock in trade pictures, photographs, drawings, diagrams, paraphernalia, apparatus or other objects which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas or an establishment with a segment or section devoted for the sale or display of such material.
   ADULT MOVIE THEATER.  An enclosed building with a capacity of 50 persons or more used primarily for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein.
   EMPLOYEE.  A natural person who performs any service or work on the premises of a sexually oriented business, including but not limited to providing entertainment, performing work of a management or supervisory nature, or performing support functions, on a full-time, part-time or contract basis, whether or not the person is denominated an EMPLOYEE, independent contractor, agent, or otherwise and whether or not the person is paid a salary, wage or other compensation by the operator of the business. EMPLOYEE does not include a person on the premises exclusively for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises.
   EMPLOYEE STATION.  An area on the premises of a sexually oriented business designated for occupancy exclusively by one or more employees whose duties include assuring compliance with the provisions of this chapter.
   ENFORCEMENT OFFICER.  The Chief of Police of the City of Mattoon or his or her designee.
   EXCRETORY FUNCTIONS.  Urination, defecation, lactation, ejaculation and menstruation. It shall not mean urination and defecation performed in a public or employee-only restroom in the manner in which those facilities arc intended to be used, and when not performed or presented for a commercial purpose. It shall not mean lactation as part of breast-feeding an infant, unless performed or displayed for a commercial purpose other than education and training in the art, science or technique of breast-feeding an infant.
   LICENSEE.  With respect to a sexually oriented business license issued under this chapter, a person in whose name a license to operate a sexually oriented business 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 a sexually oriented business employee license issued under this chapter, LICENSEE means a natural person in whose name a license has been issued authorizing employment in a sexually oriented business.
   MUNICIPALITY.  The City of Mattoon, Illinois.
   NUDITY or NUDE.  Exposing to view specified anatomical areas or any device, costume, or covering that gives the appearance of or simulates any specified anatomical areas.
   OPERATE or CAUSE TO BE OPERATED.  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. It shall also mean to cause to function or to put or keep in operation. 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.
   OPERATOR.  Any person who operates or causes to be operated a sexually oriented business.
   PATRON.  Any natural person who is not an employee or operator.
   PERSON.  shall mean a natural person, proprietorship, partnership, limited liability company, firm, association, joint stock company, joint venture, corporation or combination of individuals of whatever form or character.
   SEMI-NUDITY or SEMI-NUDE.  Exposing to view, with less than a fully opaque covering, any portion of the female breast below the top of the areola, any portion of female or male buttocks, or the male genitals in a discernibly turgid state, even if entirely covered by an opaque covering. 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.
   SEXUALLY ORIENTED BUSINESS.  Any of the following when done in a place where the public is invited or permitted, or when done for any commercial purpose including sale and rental, regardless of who pays or receives the consideration therefor, and regardless of the form of consideration:
      (1)   Adult entertainment cabaret and any other live exhibition or display of a natural person or people in the state of nudity or semi-nudity, or engaged in specified sexual activities or excretory functions.
      (2)   Engaging in, promoting or permitting a natural person or people to engage in specified sexual activities or excretory functions.
      (3)   Offering of physical contact in the form of wrestling or rumbling between natural persons, when one or more of the persons is nude or semi-nude.
      (4)   Offering of products, services or activities by or with a natural person or people when one or more of the people, whether a patron, agent, employee or otherwise, is in a state of nudity or semi-nudity.
      (5)   Adult bookstore, adult entertainment center, adult gift shop, adult movie theater, and any other establishment displaying or offering to others any publication or recorded depiction of a natural person, or created image or character, as in cartoons and animation, by any medium, including without limitation film, videotape, closed-circuit television, digital video disc (DVD), laser disc, compact disc (CD), floppy disc, photograph, slide, television, book, magazine, and computer software, which is:
         (a)   Characterized or distinguished by an emphasis on the depiction or description of specified sexual activities, excretory functions, or specified anatomical areas; or
         (b)   Advertised or otherwise held out to the public as being characterized or distinguished by an emphasis on the depiction or description of specified sexual activities, excretory functions, or specified anatomical areas, including without limitation, the use of the term “adult” and the use of the designation of one or more “X” such as, but not limited to, “XXX”.
      (6)   The display and offering to others of novelties, instruments, devices, or paraphernalia that are designed primarily for use in connection with specified sexual activities or that give the appearance of or simulate any of the specified anatomical areas.
      (7)   The term sexually oriented business shall exclude the following:
         (a)   The display and offering to others of condoms, spermicide or other nonprescription contraceptives;
         (b)   The display and offering to others of drugs, instruments or devices which require a prescription, that are designed primarily for use in connection with specified sexual activities, and which are in fact dispensed by or under the supervision of a pharmacist licensed by the State of Illinois;
         (c)   The display and offering to others of instruments, devices, or paraphernalia that are designed primarily for use in connection with specified sexual activities if they are displayed and offered to others on the premises where a pharmacist licensed by the State of Illinois is employed to dispense prescription drugs, instruments or devices;
         (d)   Breast-feeding an infant, unless performed or displayed for a commercial purpose other than education and training in the art, science or technique of breast-feeding an infant;
         (e)   The display and offering to others of motion pictures, by any format, which have received a rating from the Motion Picture Association of America of G, PG, PG-13, R or NC-17, when offered or displayed substantially in then-entirety;
         (f)   Libraries and museums funded in whole or in part by federal, state or local governmental funds;
         (g)   The display and offering to others of items described in division (5) of this definition, if and only if the display and offering are done for a commercial purpose, and all of the following apply to the business displaying and offering such items to others:
            1.   Less than 5% of its gross income comes from the sale, rental or exhibition of the following types of items:
               a.   Items which are characterized or distinguished by an emphasis on the depiction or description of specified sexual activities, excretory functions, or specified anatomical areas or any combination thereof; and
               b.   Items which are advertised or otherwise held out to the public as being characterized or distinguished by an emphasis on the depiction or description of specified sexual activities, excretory functions, or specified anatomical areas or any combination thereof, including without limitation, the use of the term “adult” and the use of the designation of one or more “X” such as, but not limited to, “XXX”; and
            2.   Less than 5% of its display space is used for the sale, rental or exhibition of the items described in divisions 1.a. and b. above; and
            3.   Less than 5% of the items it offers to others are the items described in divisions 1.a. and b. above; and
            4.   The items described in divisions l.a. and b. above are segregated from all other displays and retail areas of the premises by a solid partition from floor to ceiling with no openings or windows and with entrance and egress by means of a solid door posted with a sign not less than one foot by one foot with the words “UNDER 18 NOT ADMITTED” lettered on the sign, except that magazines characterized or distinguished by an emphasis on the depiction or description of specified sexual activities, excretory functions, or specified anatomical areas or any combination thereof may be displayed on racks or other display cases only if the magazine is encased or otherwise covered up and concealed from common view of anything other than the magazine title or text or other materials which would not be described as sexually oriented.
   Certain uses which fall within the definition of SEXUALLY ORIENTED BUSINESS may also constitute uses which are illegal under local, state or federal law, such as obscenity or child pornography. Even if such illegal uses constitute a SEXUALLY ORIENTED BUSINESS under the definition set forth in this chapter, they shall not be permitted to receive a sexually oriented business license.
   SPECIFIED ANATOMICAL AREAS.  The human genitals, pubic area, perineum, anus, anal cleft or cleavage, pubic hair, any portion of the areola of the female breast if less than a fully and opaquely covered; and the male genitals in a discernibly turgid state, even if entirely covered by an opaque covering. In determining whether any of the foregoing portions of the anatomy are fully and opaquely covered, coverage by make-up, paint, or similar matter applied directly to the skin, shall not be considered to be fully and opaquely covered.
   SPECIFIED CRIMINAL ACTIVITY.
      (1)   Any of the following offenses, as set forth in the Illinois Criminal Code of 1961, as amended, or any substantially similar offenses to those set forth below under the criminal or penal code of any local jurisdiction, state, country, or international law: indecent solicitation of a child, indecent solicitation of an adult, adultery, fornication, public indecency, sexual exploitation of a child, custodial sexual misconduct, presence within school zone by child sex offenders prohibited, sexual relations within families, bigamy, marrying a bigamist, prostitution, solicitation of a sexual act, soliciting for a prostitute, soliciting for a juvenile prostitute, pandering, keeping a place of prostitution, keeping a place of juvenile prostitution, patronizing a prostitute, patronizing a juvenile prostitute, pimping, juvenile pimping, exploitation of a child, obscenity, child pornography, commercial film and photographic print processor - reports, harmful material, tie-in sales of obscene publications to distributors, criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual abuse, aggravated criminal sexual abuse, criminal transmission of HIV, ritualized abuse of a child, female genital mutilation, violation of the sex offender registration act, stalking (if the basis of the conviction is the threat of immediate or future sexual assault, or placing a person in reasonable apprehension of immediate or future sexual assault), first degree murder (if the basis for the conviction is ILCS Ch. 720, Act 5, § 9-1(a)(3), commonly known as felony murder, where the predicate felony is any felony otherwise set forth in this definition), burglary (if the basis for the conviction is an intent to commit any felony otherwise set forth in this definition), residential burglary (if the basis for the conviction is an intent to commit any felony otherwise set forth in this definition), armed violence (if the basis for the conviction is an intent to commit any felony otherwise set forth in this definition), attempt to commit any of the foregoing crimes, conspiracy to commit any of the foregoing crimes, and any other felony or misdemeanor for which an element of the offense is the commission of any of the foregoing crimes or an intent to commit any of the foregoing crimes,
      (2)   For which: (A) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever is the later date, if the conviction is of a misdemeanor, business offense or petty offense; or (B) less than five years have elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date, if the conviction is of a felony offense.
      (3)   The fact that a conviction is being appealed shall not prevent such conviction from constituting a specified criminal activity as defined in this chapter.
   SPECIFIED SEXUAL ACTIVITIES.  Any of the following, whether actual or simulated:
      (1)   The fondling or other erotic touching of specified anatomical areas, regardless of whether the performer or recipient is clothed, in a state of nudity or in a state of semi-nudity;
      (2)   The manipulation of the human body of another, including massage, by the use of any portion of manipulator’s body, whether covered or uncovered, or by any device, if the person performing the manipulation is in a state of nudity or semi-nudity.
      (3)   Sex acts, normal or perverted, heterosexual, homosexual or bisexual, including without limitation intercourse, fellatio, cunnilingus, analingus, masturbation, bestiality, sodomy, bondage and discipline, sadism and masochism, and any other act intended to cause sexual arousal;
      (4)   Sex acts between animals when offered or displayed for the purpose or with the intent of causing the sexual arousal of a human viewer.
   TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY ORIENTED BUSINESS.  Any of the following:
      (1)   the sale, lease, or sublease of the business;
      (2)   The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or
      (3)   The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfers by bequest or other operation of law upon the death of the person possessing the ownership or control.
(Ord. 2014-5372, passed 12-16-2014)