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(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)
(A) An application for an employee license shall be submitted to the Community Development Department on a form provided by the Community Development Department. The application may request, 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 the application in the amount of $25.
(C) An application for an employee license shall be completed according to the instructions of the application form, which shall require the following:
(1) State the applicant’s name and any other names (including “stage” names) or aliases used by the applicant.
(2) State the applicant’s date and place of birth.
(3) State the applicant’s height, weight, and hair and eye color.
(4) Submit a recent photograph of the applicant, taken by the Montgomery Police Department, which clearly shows the applicant’s face.
(5) Submit the applicant’s fingerprints, recorded by the Montgomery Police Department.
(6) Describe and identify the location of any tattoos on the applicant’s face, arms, legs, or hands, or any other anatomical area that normally would be visible when the applicant is on the premises of the proposed sexually oriented business.
(7) State the applicant’s present residence address and telephone number.
(8) State the applicant’s present or intended business address and telephone number.
(9) State the applicant’s driver’s license number and Social Security number.
(10) Submit proof that the applicant is at least 18 years old.
(11) Provide a statement detailing the sexually oriented business-related license history of the applicant for the five years immediately preceding the date of the filing of the application, including whether such applicant previously operated or is seeking to operate a sexually oriented business, in this or any other jurisdiction, and whether the applicant has ever had a sexually oriented business-related license, permit, or authorization to do business denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the name of the issuing or denying jurisdiction and describe in full the reason for the denial, revocation, or suspension. Attach a copy of any order of denial, revocation, or suspension.
(12) State whether the 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.
(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 constitutes protected private information and is 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 the filing of a completed application for an employee license, the Community Development Department shall issue a license to said applicant immediately.
(B) Within five days of receipt of a completed application for an employee license, the Community Development Department shall request that the Montgomery Police Department initiate an investigation of the information provided in the application concerning the criminal background of the applicant. The Montgomery Police Department shall document the results of its investigation in writing within five days of the completion of its investigation and transmit this writing to the Community Development Department or its designee.
(C) Within ten days after completion of the criminal background investigation of the applicant, the Community Development Department shall either affirm the prior issuance of the license or revoke the license. The Community Development Department shall affirm the prior issuance of a license to an applicant unless he/she determines that one or more of the following findings are true:
(1) The 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).
(2) The applicant is under 18 years of age.
(3) The applicant has been convicted of a specified criminal activity as defined in this chapter.
(4) The employee license is to be used for employment in a business prohibited by local, state, or federal law, statute, rule or regulation.
(5) The applicant has, within the preceding 12 months, been denied an employee license by any jurisdiction or has had an employee license revoked by any jurisdiction.
(D) If the employee license is revoked, the Community Development Department shall advise the applicant in writing within three days of the reason(s) for any such revocation.
(E) Before an approved sexually oriented business employee license shall be issued, an approved applicant shall pay a license fee of $25.
(Ord. 2-2017, passed 1-4-17)
(A) Each license issued pursuant to this chapter shall expire one year from the date of issuance and may be renewed by making application as provided in this section. Application for renewal shall be made no more than 90 days and no less than 21 days before the expiration date. If application is made less than 21 days before the expiration date, the license will not be extended pending a decision on the application, but will expire on its normal expiration date.
(B) An application for renewal of a sexually oriented business license shall be submitted to the Community Development Department on a form provided by the Community Development Department. The completed renewal application shall describe any changes or additions to, or deletions from, the information provided in the applicant’s initial license application pursuant to this chapter. Copies of any document or material submitted in connection with the initial license application shall accompany the completed renewal application that has been revised or such application shall be revised to reflect any change in circumstances or conditions. Sketches or diagrams submitted with an initial sexually oriented business license application may be resubmitted with subsequent renewal applications, provided that the applicant certifies in writing that the sketch or diagram still depicts the premises accurately.
(C) The Community Development Department shall make determinations concerning the approval of license renewals based on the same criteria and time mandates used to evaluate applications for new licenses under this chapter.
(D) The Community Development Department shall advise the applicant in writing within three days of the reason(s) for any denial of a license renewal.
(E) An application for renewal of an employee license shall be submitted to the Community Development Department on a form provided by the Community Development Department. The completed renewal application shall describe any changes or additions to, or deletions from, the information provided in the applicant's initial license application pursuant to this chapter. Copies of any document or material submitted in connection with the initial license application shall accompany the completed renewal application that has been revised or requires revision to reflect any change in circumstances or conditions.
(F) When the city denies an application for renewal of a license, the applicant shall not be issued another license for one year from the date of denial. However, if the city finds, subsequent to denial, that the basis for the denial of the renewal license has been corrected or abated, the applicant may reapply prior to the expiration of the one-year period.
(G) An approved sexually oriented business licensee shall pay an annual renewal license fee of $500 before a license shall be issued. An approved sexually oriented business employee licensee shall pay an annual license fee of $25 before a renewal license shall be issued.
(Ord. 2-2017, passed 1-4-17)
(A) The city shall suspend a sexually oriented business license for a period not to exceed 30 days if it determines that a licensee:
(1) Has violated or is not in compliance with any section of this chapter; or
(2) Has knowingly allowed an employee to violate or fail to comply with any section of this chapter.
(B) The city shall suspend a sexually oriented business license for a period not to exceed 30 days if it determines that a licensee or its employee or agent has refused to allow, or has prohibited or has interfered with, an inspection of the licensed sexually oriented business premises as authorized by § 151.185(B) and (D) of this chapter or any other reasonable inspection.
(C) The city shall suspend an employee license for a period not to exceed 30 days if it determines that a licensee has violated or is not in compliance with any section of this chapter.
(D) The Community Development Department shall advise the licensee in writing within three days of the reason(s) for any suspension.
(Ord. 2-2017, passed 1-4-17)
(A) The city shall revoke a sexually oriented business license or employee license if a cause of suspension under this chapter occurs and the license has been suspended two times within the preceding 12 months.
(B) The city shall revoke a sexually oriented business license if it determines that:
(1) A licensee failed to provide all information and documents required for issuance of the license as requested on the application form, or provided information or documents as requested on the application that are false;
(2) The licensee(s) failed to comply with any requirement stated in the license, pursuant to this chapter, to correct specified deficiencies within 120 days;
(3) A licensee has knowingly allowed possession, use, or sale of controlled substances on the premises;
(4) A licensee has knowingly allowed prostitution, solicitation, or the commission of a felony on the premises;
(5) A licensee knowingly operated the sexually oriented business during a period of time when the licensee’s license was suspended;
(6) A licensee has knowingly allowed any act of specified criminal activity, as defined in this chapter, to occur in or on the licensed premises;
(7) A licensee has been convicted of a specified criminal activity, as defined in this chapter, during the term of the license; or
(8) A licensee is delinquent in payment to the city, county, or state for any taxes or fees that were assessed or imposed in relation to any business.
(C) The city shall revoke an employee license if it determines that:
(1) The licensee failed to provide all information and documents required for issuance of the license as requested on the application form, or provided information or documents as requested on the application that are false;
(2) The licensee has knowingly acted as an employee on the premises of a sexually oriented business during a period of time when the licensee’s license was suspended; or
(3) The licensee has been convicted of a specified criminal activity, as defined in this chapter during the term of the license.
(D) The Community Development Department shall advise the licensee in writing within three days of the reason(s) for any revocation.
(E) When the city revokes a license pursuant to divisions (A), (B)(3) through (B)(7), (C)(2) or (C)(3) above, the licensee shall not be issued another license for one year from the date the revocation became effective.
(F) When the city revokes a license pursuant to divisions (B)(1), (B)(8) or (C)(1) above, the applicant may be granted a license if the basis for the revocation has been corrected or abated and at least 30 days have elapsed since the date the revocation became effective.
(Ord. 2-2017, passed 1-4-17)
(A) Any denial, suspension, or revocation of a license under this chapter may be appealed to the City Council by written notice within ten days of such denial, suspension, or revocation. Unless the applicant requests a longer period, the City Council must hold a hearing on the appeal within 21 days and must issue a decision affirming or reversing the denial, suspension, or revocation within five days after the hearing. During the time between the date of the denial, suspension, or revocation of a license and the date of the City Council decision affirming or reversing the denial, suspension, or revocation, the status quo of the license holder or applicant shall be maintained.
(B) In the event that the City Council denies, suspends, or revokes a new or renewal license under this chapter, or any action taken on an appeal that is provided by this chapter, the applicant may pursue an appeal to Hamilton County Court of Common Pleas pursuant to R.C. Chapter 2506. The failure of the City Council to render a decision on the application within the time prescribed in division (A) above shall be considered an affirmance of the denial, suspension, or revocation of the license and the applicant may pursue an appeal to Hamilton County Court of Common Pleas pursuant to R.C. Chapter 2506. This appeal provision is intended to comply with the requirement for prompt judicial review stated by the United States Supreme Court in Township of Littleton, Colorado v. Z. J. Gifts D-4 (2004), 541 U.S. 774.
(C) Any licensee lawfully operating a sexually oriented business prior to the denial of a license renewal application, or the suspension or revocation of a license, shall retain said license and all privileges attendant thereto, subject to all other terms of this chapter, so that the status quo of the licensee is maintained during the pendency of an appeal to the City Council of a decision rendered under this chapter and during the entire time required for the Court of Common Pleas to rule on the appeal pursuant to division (B) above.
(D) Any licensee lawfully acting as an employee in a sexually oriented business prior to the denial of a license renewal application, or the suspension or revocation of a license, shall retain said license and all privileges attendant thereto, subject to all other terms of this chapter, so that the status quo of the licensee is maintained during the pendency of an appeal to the City Council of a decision rendered under this chapter and during the entire time required for the Court of Common Pleas to rule on the appeal pursuant to division (B) above.
(E) In the event that any judicial review of the denial of a new or renewal license application or the revocation or suspension of a license is still pending 30 days before the expiration date of any license, the licensee may file a renewal license application with the Community Development Department pursuant to this chapter. In the event that an application for renewal of a license is denied and the applicant seeks judicial review of that denial, the city has the right to consolidate such review with any pending judicial actions in regards to the previous denial, suspension or revocation of a license.
(F) If, during the pendency of any appeal pursued under division (B) above, there are additional denials of a renewal license application or suspensions or revocations of that license, the city has the right to consolidate the appeal pursued under division (B) above for the additional denials, suspensions or revocations with any pending appeal for that same licensee.
(Ord. 2-2017, passed 1-4-17)
(A) A sexually oriented business license is not transferable from one licensee to another or from one location to another. Any purported transfer of a sexually oriented business license shall automatically and immediately revoke that license.
(B) An employee license is not transferable from one licensee to another, but the use of the license by the individual to whom it was issued may be transferred from one licensed sexually oriented business to another such licensed establishment during the term of the license, provided that the licensee gives written notice of such transfer to the Community Development Department within 15 days of such transfer.
(Ord. 2-2017, passed 1-4-17)
(A) Sexual activity, live entertainment and performances.
(1) No person shall, in a sexually oriented business, appear before a patron or patrons in a state of nudity, regardless of whether such public nudity is expressive in nature.
(2) Any employee appearing on the premises of a sexually oriented business in a state of semi-nudity, as defined by this chapter, must be on a stage that is at least 24 inches from the floor, and at a distance at least 36 inches from all parts of a clearly designated area in which patrons will be present.
(3) All live entertainment and performances in a sexually oriented business must take place on a stage that is at least 24 inches from the floor and a distance of at least 36 inches from all parts of a clearly designated area in which patrons will be present.
(4) The interior of the premises shall be configured in such a manner that there is a an unobstructed view from an operator’s station of every area of the premises, including the interior of each viewing room but excluding restrooms, to which any patron is permitted access for any purpose. If the premises has two or more operator’s stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the operator’s stations. It is the duty of the operator to ensure that at least one employee is on duty and situated in an operator’s station at all times that any patron is on the portion of the premises monitored by the operator station. It shall be the duty of the operator, and it shall also be the duty of any employees present on the premises, to ensure that the view area specified in this paragraph remains unobstructed by any doors, curtains, walls, merchandise, display racks or other materials or enclosures at all times that any patron is present on the premises.
(5) No employee shall knowingly or intentionally, in a sexually oriented business, appear within view of any patron in a nude or semi-nude condition unless the employee, while nude or semi-nude, shall be and remain at least six feet from all patrons.
(6) Employees in a sexually oriented business shall maintain a minimum distance of five feet from areas on the business premises occupied by patrons for a minimum of 20 minutes after the employee appears in a nude or semi-nude condition within view of any patron. This regulation is not intended to prohibit ingress or egress from the premises. It is intended to control illicit sexual contact and reduce the incidents of prostitution occurring in the establishments.
(7) No patron who is not a member of the employee’s immediate family shall knowingly touch an employee while that employee is nude or seminude or touch the clothing of any employee while that employee is nude or semi-nude.
(8) No employee who regularly appears nude or seminude on the premises of a sexually oriented business and while nude or seminude, shall knowingly touch a patron who is not a member of the employee’s immediate family or another employee who is not a member of the employee’s immediate family or the clothing of a patron who is not a member of the employee’s immediate family or another employee who is not a member of the employee’s immediate family or allow the patron who is not a member of the employee’s immediate family or another employee who is not a member of the employee’s immediate family to touch the employee or the clothing of the employee.
(9) The provisions of divisions (A)(1) through (A)(8) above shall not apply to an employee’s use of any restroom or any single-sex dressing room that is accessible only to employees.
(10) In addition, divisions (A)(1) through (A)(8) shall not apply to live performances in which the patron and employee are separated by an impenetrable barrier such as, but not limited too, glass or Plexiglas.
(B) Minors prohibited. No person under the age of 18 years shall be permitted on the premises of a sexually oriented business.
(C) Hours of operation. No sexually oriented business shall be or remain open for business between 12:00 midnight and 6:00 a.m. on any day, except that a sexually oriented business that holds a liquor permit pursuant to R.C. Chapter 4303 may remain open until the hour specified in that permit if it does not conduct, offer, or allow sexually oriented business activity in which the performers appear nude.
(Ord. 2-2017, passed 1-4-17)
Editor’s Note:
The following court cases and state provisions may apply to § 151.1813:
Sensations, Inc. v. City of Grand Rapids, Michigan Decency Action Council (6th Cir. 2008), 526 F.3d 291
Sensations, Inc. v. City of Grand Rapids, Michigan Decency Action Council (6th Cir. 2008), 526 F.3d 291
729, Inc. v. Kenton County Fiscal Court (6th Cir. 2008), 515 F.3d 485
R.C. § 2907.40(B), (C)(1) and (C)(2)