For purposes of this chapter, the words and phrases defined in the divisions hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context.
(a) “Administrator” means the City Planner.
(b) “Adult bookstore or adult video store” means a commercial establishment which, as one of its principal business activities, offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas.” A “principal business activity” exists where the commercial establishment:
(1) Has a substantial portion of its displayed merchandise which consists of said items;
(2) Has a substantial portion of the wholesale value of its displayed merchandise which consists of said items;
(3) Has a substantial portion of the retail value of its displayed merchandise which consists of said items;
(4) Derives a substantial portion of its revenues from the sale or rental, for any form of consideration, of said items;
(5) Maintains a substantial section of its interior business space for the sale or rental or said items; or
(6) Maintains an “adult arcade,” which 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 regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting “specified sexual activities” or “specified anatomical areas.”
(c) “Adult cabaret” means a nightclub, bar, juice bar, restaurant, bottle club, or other commercial establishment, whether or not alcoholic beverages are served, which regularly features persons who appear semi-nude.
(d) “Adult motion picture theater” means a commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas” are regularly shown to more than five persons for any form of consideration.
(e) “Characterized by” means describing the essential character or quality of an item. As applied in this chapter, no business shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.
(f) “City” means Miamisburg, Ohio.
(g) “Employ, employee, and employment” describe and pertain to any person who performs any service on the premises of a sexually oriented business, on a full-time, part-time, or contract basis, whether or not the person is denominated an employee, independent contractor, agent, or otherwise. Employee does not include a person exclusively on the premises for repair or maintenance of the premises or for the delivery of goods to the premises.
(h) “Establish or establishment” shall mean and include any of the following:
(1) The opening or commencement of any sexually oriented business as a new business;
(2) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; or
(3) The addition of any sexually oriented business to any other existing sexually oriented business.
(i) “Hearing officer” means an attorney, not otherwise employed by the City, who is licensed to practice law in Ohio, and retained to serve as an independent tribunal to conduct hearings under this chapter.
(j) “Influential interest” means any of the following:
(1) The actual power to operate the sexually oriented business or control the operation, management or policies of the sexually oriented business or legal entity which operates the sexually oriented business;
(2) Ownership of a financial interest of 30 percent or more of a business or of any class of voting securities of a business; or
(3) Holding an office (e.g., president, vice-president, secretary, treasurer, managing member, managing director, etc.) in a legal entity which operates the sexually oriented business.
(k) “Licensee” shall mean a person in whose name a license to operate a sexually oriented business has been issued, as well as the individual or individuals listed as an applicant on the application for a sexually oriented business license. In the case of an “employee,” it shall mean the person in whose name the sexually oriented business employee license has been issued.
(l) “Nudity or a state of nudity” means the showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola.
(m) “Operate or cause to operate” shall mean to cause to function or to put or keep in a state of doing business. “Operator” means any person 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.
(n) “Person” shall mean individual, proprietorship, partnership, corporation, association, or other legal entity.
(o) “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 sexually oriented business license.
(p) “Regularly” means and refers to the consistent and repeated doing of the act so described.
(q) “Semi-nude or state of semi-nudity” means the showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.
(r) “Semi-nude model studio” means a place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons. This definition does not apply to any place where persons appearing in a state of semi- nudity did so in a modeling class operated:
(1) By a college, junior college, or university supported entirely or partly by taxation;
(2) By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or
(3) In a structure:
A. Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and
B. Where, in order to participate in a class a student must enroll at least three days in advance of the class.
(s) “Sexual device” means any three-dimensional object designed and marketed for stimulation of the male or female human genitals, anus, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos, vibrators, penis pumps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.
(t) “Sexual device shop” means a commercial establishment that regularly features sexual devices. Nothing in this definition shall be construed to include any pharmacy, drug store, medical clinic, or any establishment primarily dedicated to providing medical or healthcare products or services, nor shall this definition be construed to include commercial establishments which do not restrict access to their premises by reason of age.
(u) “Sexual encounter center” shall mean a business or commercial enterprise that, as one of its principal business purposes, purports to offer for any form of consideration, physical contact in the form of wrestling or tumbling between persons of the opposite sex when one or more of the persons is semi-nude.
(v) “Sexually oriented business” means an “adult bookstore or adult video store,” an “adult cabaret,” an “adult motion picture theater,” a “semi-nude model studio,” a “sexual device shop,” or a “sexual encounter center.”
(w) “Specified anatomical areas” includes:
(1) Human genitals, pubic region, buttocks, and female breast below a point immediately above the top of the areola; and
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
(x) “Specified criminal activity” means any of the following specified crimes for which less than five years elapsed since the date of conviction or the date of release from confinement for the conviction, whichever is the later date:
(1) Rape, sexual assault, public indecency, statutory rape, rape of a child, sexual exploitation of a minor, indecent exposure;
(2) Prostitution, patronizing prostitution, promoting prostitution;
(3) Obscenity;
(4) Dealing in controlled substances;
(5) Racketeering, tax evasion, money laundering;
(6) Any attempt, solicitation, or conspiracy to commit one of the foregoing offenses.
(y) “Specified sexual activity” means any of the following:
(1) Intercourse, oral copulation, masturbation or sodomy; or
(2) Excretory functions as a part of or in connection with any of the activities described in division (1) above.
(z) “Substantial” means at least 35 percent of the item(s) so modified.
(aa) “Transfer of ownership or control” of a sexually oriented business shall mean any of the following:
(1) The sale, lease, or sublease of the business;
(2) The transfer of securities which constitute an influential 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 transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(bb) “Viewing room” shall mean the room, booth, or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video reproduction.
(Ord. 5998. Passed 7-17-07.)