Section
151.181 Definitions
151.182 Zoning regulations
151.183 License required
151.184 Application for license
151.185 Issuance of a license
151.186 Employee license application
151.187 Issuance of sexually oriented business employee license
151.188 Expiration and renewal of license
151.189 Suspension
151.1810 Revocation
151.1811 Appeal rights
151.1812 Transfer of license
151.1813 Additional regulations concerning the operation of a sexually oriented business
Editor’s note:
For purpose and intent of these regulations, see Section 1 of Ordinance 2-2017
For the purpose of this chapter, the following definitions shall apply, unless the context clearly indicates or requires a different meaning.
(A) (1) “ADULT BOOKSTORE,” “ADULT CABARET,” “ADULT MOTION PICTURE THEATER,” “ADULT VIDEO STORE,” “CHARACTERIZED BY,” “NUDE,” “NUDITY,” “STATE OF NUDITY,” “SEMINUDE,” “STATE OF SEMINUDITY,” “SEXUAL DEVICE,” “SEXUAL DEVICE SHOP,” “SEXUAL ENCOUNTER CENTER,” “SPECIFIED ANATOMICAL AREAS,” AND “SPECIFIED SEXUAL ACTIVITY” have the same meanings as in R.C. § 2907.40; and
(2) “ADULT ARCADE,” “ADULT ENTERTAINMENT,” “ADULT ENTERTAINMENT ESTABLISHMENT,” “ADULT NOVELTY STORE,” “ADULT THEATER,” “DISTINGUISHED OR CHARACTERIZED BY THEIR EMPHASIS UPON,” “NUDE OR SEMINUDE MODEL STUDIO,” “REGULARLY FEATURES,” “REGULARLY SHOWN,” AND “SEXUAL ENCOUNTER ESTABLISHMENT” have the same meanings as in R.C. § 2907.39.
(B) “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.
(C) “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.
(D) “LICENSE” means a license to act or operate a sexually oriented business, issued pursuant to this chapter.
(E) “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 division (B) above in whose name a license has been issued authorizing employment at sexually oriented business.
(F) “OPERATE” 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 BE OPERATED” shall mean to cause to function or to put or keep in operation.
(G) “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.
(H) “PATRON” means any individual on the premises of a sexually oriented business, except for any of the following:
(1) An operator or an employee of the sexually oriented business;
(2) An individual who is on the premises exclusively for repair or maintenance of the premises or for the delivery of goods to the premises;
(3) A public employee or a firefighter/emergency medical services worker acting within the scope of the public employee’s duties as a public employee.
(I) “PERSON” means an individual, proprietorship, partnership, trust, firm, association, joint stock company, corporation or combination of individuals of whatever form or character.
(J) “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.
(K) “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, and sexual encounter establishment as defined by division (A) above, but does not include a business solely by reason of its showing, selling, or renting materials that may depict sex.
(L) “SPECIFIED CRIMINAL ACTIVITY” means any of the following offenses:
(1) 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;
(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 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 section.
(M) “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 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 transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.
(Ord. 2-2017, passed 1-4-17)
(A) Sexually oriented businesses may only be established in the General Business District and shall be subject to all further restrictions of this chapter. No person shall establish a sexually oriented business within 750 feet of another such business or within 750 feet of a property used for residential purposes, a school, a daycare, or a church.
(B) For purchases of this chapter, distance between any two sexually oriented businesses or between any sexually oriented business and any protected use shall be measured in a straight line without regard to intervening structures from the nearest part of the structure containing a sexually oriented business to the nearest property line of the protected use. Protected uses are residential uses, schools, daycares and churches.
(Ord. 2-2017, passed 1-4-17)
(A) No person shall:
(1) Operate a sexually oriented business as defined by § 151.181(K) without a valid sexually oriented business license issued by the city pursuant to this chapter.
(2) In connection with operating a sexually oriented business, retain the services of a person as an employee, as defined in this chapter, who is not licensed as a sexually oriented business employee by the city pursuant to this chapter.
(B) Any person who violates division (A)(1) above shall be guilty of a misdemeanor of the third degree for a first offense, and a misdemeanor of the first degree for any second or subsequent offense.
(C) A violation of division (A)(2) above shall be a ground for the suspension of a sexually oriented business license as provided for in § 151.189 of this chapter.
(D) No person shall act as an employee, as defined in this chapter, on the premises of a sexually oriented business without having secured a sexually oriented business employee license (“employee license”) pursuant to this chapter.
(E) A violation of division (D) above shall be a ground for the suspension of a sexually oriented business employee license as provided for in § 151.189 of this chapter.
(Ord. 2-2017, passed 1-4-17)
(A) An original or renewal application for a sexually oriented business license shall be submitted to the Community Development Director or its designee on a form provided by the Community Development Director. 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 in the amount of $500.
(C) An application for a sexually oriented business license shall identify and be signed by the following persons:
(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 50% 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. Each person so designated, as well as the business entity itself, shall be considered a license applicant, must qualify as a licensee under this chapter, and shall be considered a licensee if a license is granted.
(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:
(a) An individual, state the legal name and any aliases of such individual; or
(b) 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
(c) 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
(d) 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 for the State of Ohio, and the address of the registered office within the State of Ohio 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 50% 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 mailing address and residential address of each applicant and each person signing the application.
(8) Submit a recent photograph of each applicant who is a natural person, taken by the Montgomery Police Department that clearly shows the applicant’s face.
(9) Submit the fingerprints of each applicant who is a natural person, recorded by the Montgomery Police Department.
(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 Social Security number of each applicant who is a natural person and each person signing the application, or, for 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 18 years old.
(13) Submit a sketch or 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 inches.
(14) 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.
(15) The information gathered pursuant to the above provisions constitute protected private information and are exempt from Ohio’s Public Records Act in accordance with the decision of the Sixth Circuit Court of Appeals in DejaVu of Cincinnati v. Union Township (6th Cir. 2005), 411 F.3d 777.
(Ord. 2-2017, passed 1-4-17)
(A) Upon receipt of an application for a sexually oriented business license, the Community Development Department shall promptly request that the Montgomery Police Department review the information provided in the application concerning the criminal background of the applicant(s) and that the Montgomery Police Department shall transmit the results of its investigation in writing to the Community Development Department within five days of the completion of its investigation.
(B) Within five days of receipt of an application for a sexually oriented business, the Community Development Department shall notify the City Fire Chief and the Hamilton County Health Commissioner of such application. In making such notification, the Community Development Department shall request that the Fire Chief and Health Commissioner 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 Community Development Department a written certification of whether the premises are in compliance with the City Fire Code within ten days of receipt of notice of the application.
(D) The Community Development Department, or its designee, 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 days after receipt of the application, a written certification of whether the premises are in compliance with the City Zoning Ordinance, the City Building 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 21 days after receipt of a completed sexually oriented business license application, the Community Development Department shall approve or deny the issuance of a license. The Community Development 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 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)(1).
(3) An applicant has, within the preceding 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 Building 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 chapter, except as provided in division (F) of this section.
(F) If the Community Development Department determines that one or both of the following findings is true, the license issued pursuant to this section shall contain a requirement that the licensee correct all deficiencies specified within 120 days of the date the license is issued:
(1) The results of inspections of the premises by the Fire Chief or its designee or the Health Commissioner or its designee indicate that the premises are not in compliance with applicable laws and regulations under their respective jurisdictions.
(2) An applicant is overdue in payment to the city of taxes, fees, fines, or penalties assessed against or imposed upon him/her in relation to any business, which are not the subject of a pending appeal or other legal challenge.
(G) 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.
(H) The Community Development Department or its designee shall advise the applicant in writing within three days of the Community Development 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.
(I) Before an approved sexually oriented business license shall be issued, the applicant shall pay a one year license fee of $500.
(Ord. 2-2017, passed 1-4-17)
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