Fairborn City Zoning Code

CHAPTER 1126

Adult Uses

1126.01 PURPOSE AND INTENT.

It is the purpose of this ordinance to regulate sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the City of Fairborn, and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually oriented businesses within the City. The provisions of this ordinance 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 or effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material. Rather, this chapter is intended to provide for the proper location of adult uses in order to protect the integrity of adjacent neighborhoods, educational uses, religious uses, parks and other areas where large numbers of minors regularly travel or congregate, and the quality of urban life. Proper separation of adult uses prevents the creation of "skid-row" areas in the City of Fairborn, Ohio that results from the concentration of these uses and their patrons. It is the intent of this chapter to limit the secondary effects of adult uses. The standards in this chapter are intended to ensure that residential districts, religious uses, educational uses, parks and other areas where large numbers of minors regularly travel or congregate are located in areas free from the secondary effects of adult uses. The location of residential districts, religious uses, educational uses, parks and other areas where large numbers of minors regularly travel or congregate within viable, unblighted, and desirable areas supports the preservation of property values and promotes the health, safety and welfare of the public.

(Ord. 34-17. Effective 12-7-17.)

1126.02 FINDING OF FACTS.

Based upon various studies done on the effects of adult uses on the quality of community life, the recognition of the United States Supreme Court and the courts of Ohio that a city's regulation of the location of adult uses in order to preserve the quality of urban life constitutes a substantial government interest, and based upon the successful enactment and enforcement of similar ordinances throughout this state and other states, Council hereby finds that the enactment of a zoning ordinance to regulate the location of adult uses is a substantial government interest for the City of Fairborn in preserving the quality of urban life and that it is in the interest of the health, safety, morals, and general welfare of the citizens of Fairborn, Ohio that adult uses are regulated pursuant to the standards herein.

(Ord. 34-17. Effective 12-7-17.)

1126.03 WHERE PERMITTED AND PROHIBITED.

Adult uses, including but not limited to adult arcades, adult book stores, adult theaters, and adult cabarets shall meet the following requirements:

(a) Adult uses are conditionally permitted in the LI Light Industrial District.

(b) In no case shall an adult use be permitted as an accessory use.

(d) An adult use shall not be located within a 1,000 foot radius of a residential zoning district or a parcel of land containing a religious institution, school, child care facility, nursing or retirement home, library, museum, park, swimming pool, playground, place of public amusement or other areas where large numbers of minors regularly travel or congregate, a hotel or motel, or any business that sells alcoholic beverages either packaged, by the glass or by other means, within or outside the city corporate limits.

(1) No more than one adult use shall be located in the same building or structure, or on the same parcel.

(2) An adult use shall not be located within a 1,000-foot radius of another adult use.

(3) No adult use shall be located within 1,000 feet of the property line of a parcel containing a legal nonconforming use.

(e) For the purpose of subsections 1126.03(d)(1) and 1126.03(d)(3), measurement shall be made in a straight line, without regard to the intervening structures or objects, from the nearest portion of the principal building or structure or tenant space if located in a multi-tenant building used as the part of the premises where an adult use is operated, to the nearest Zoning District or property line of the premises of the non-adult use listed.

(f) For the purpose of subsection 1126.03(d)(2) of this section, the distance between any two adult uses shall be measured in a straight line, without regard to the intervening structures or objects, from the closest exterior walls of the structure or tenant spaces if located in a multi-tenant building in which each adult use is located. (Ord. 34-17. Effective 12-7-17.)

1126.04 PUBLIC NUDITY PROHIBITED.

"Nudity", as defined under Chapter 1133: Definitions, is prohibited in public areas of adult uses, except as permitted entirely within the confines of a cabaret stage, as defined in this Zoning Code and regulated by Section 1126.07. Any adult use which is found in violation of this Section shall have its permit suspended pursuant to the provisions of Section 701.10 of the Codified Ordinances of Fairborn in addition to any other penalty provided by law.

(Ord. 34-17. Effective 12-7-17.)

1126.05 SPECIFIED SEXUAL ACTIVITY PROHIBITED.

Any act of sexual intercourse, sexual conduct, or any other specified sexual activities as defined in Chapter 1133: Definitions, shall not be permitted to occur in or on the permitted premises of an adult use.

(Ord. 34-17. Effective 12-7-17.)

1126.06 GENERAL DEVELOPMENT AND USE STANDARDS.

The following shall apply to all adult uses:

(a) The interior of the adult use shall be adequately lighted and constructed so that every portion thereof is readily visible to the clerk or other supervisory personnel from the counter or other regulation station.

(b) Lobby and entrance areas shall be designed so as to minimize obstruction during operating hours.

(c) Advertisements, displays, or other promotional materials shall not be shown or exhibited so as to be visible to the public, from pedestrian sidewalks or walkways or public thoroughfares, or from other areas, public or semipublic; and such displays shall be considered signs.

(d) Signs shall not advertise the presentation of any activity prohibited by Chapter 701 of the Codified Ordinances of Fairborn or other local or state regulation.

(e) All building openings, entries, window, etc., shall be located, covered or screened in such a manner as to prevent a view into the interior from any public or semipublic areas. Adult drive-in theaters are expressly prohibited for their inability to obscure presentation of adult uses from neighboring properties and public thoroughfares.

(f) No screens, loudspeakers or sound equipment shall be used for an adult use that can be seen or discerned by the general public from public or semipublic areas or public thoroughfares.

(g) No adult use shall serve alcoholic beverages, either packaged, by the glass or by any other means, nor shall the adult use allow alcoholic beverages purchased at another location to be brought onto the premises.

(h) Adult uses shall not be permitted to operate from the hours of 12:00 a.m. to 9:00 a.m. of any particular day.

(i) No adult use shall be open at any time on any state or federal holiday.

(j) No animals except seeing-eye, guide, hearing, and service dogs, and other animals trained to assist disabled individuals shall be permitted at any time at or in any adult use.

(k) All restrooms shall be equipped with standard toilets, sinks, and other traditional lavatory facilities. No adult materials or live performances shall be provided or allowed at any time in the restrooms of an adult use. Separate male and female restrooms shall be provided for and used by employees and patrons.

(l) The exterior building walls shall be a single achromatic color of white, gray or black.

(m) Premise entries and off-street parking areas shall be illuminated from dusk until closing with a lighting system which provides an average maintained horizontal illumination of one foot candle of light on the parking surface and walkways.

(n) Upon application for conditional use, the applicant(s) shall also comply with the licensing and permitting requirements for adult uses and their employees as specified in Chapter 701 of the City of Fairborn Codified Ordinances. Said licensing requirements shall be renewed annually. Failure to comply with licensing requirements shall be grounds for revocation of conditional use approval.

(o) Floor coverings shall be nonporous, easily cleanable surfaces, with no rugs or carpeting.

(p) Wall surfaces and seating surfaces in any room or area shall be constructed of, or permanently covered by nonporous easily cleanable material.

(q) The floors, seats, walls and other public and private portions of any adult use shall be maintained clean and free from waste and bodily secretions. Presence of human excrement, urine, semen or saliva shall be evidence of improper maintenance and inadequate sanitary controls. Repeated instances of such conditions may justify suspension or revocation of the license to operate the adult use.

(r) The operator of an adult use shall not permit any doors on the premises to be locked during business hours and, in addition, the operator shall be responsible to see that any room or area on the premises shall be readily accessible at all times and shall be open to view in its entirety for inspection by any law enforcement official.

(s) Sufficient lighting shall be provided and equally distributed throughout public areas of the building interior so that all objects are plainly visible at all times. A minimum lighting level of not less than 100 lux horizontal, measured at 30 inches from the floor and on 10-foot centers shall be maintained at all times for all areas where adult use patrons are admitted.

(Ord. 34-17. Effective 12-7-17.)

1126.07 SPECIFIC DEVELOPMENT AND USE STANDARDS.

(a) Specific Requirements for Adult Cabarets.

(1) The adult cabaret shall provide a separate employee entrance and exit.

(2) Adult cabaret shall provide dressing room facilities that are exclusively dedicated to the employees' use.

(3) The performance area of an adult cabaret shall be limited to one or more stages or platforms permanently anchored to the floor (a "cabaret stage").

A. The cabaret stage shall be visible immediately upon entering the premise's seating area and shall be visible to an operator at all times. The cabaret stage shall not be blocked or obstructed by a door, curtain, drape or any other obstruction.

B. Each cabaret stage shall be at least 18 inches in elevation above the level of the patron seating areas and shall be separated by a distance of at least six feet from all areas of the premises to which patrons have access. A continuous railing, at least three feet in height and located at least six feet from all points of the stage, shall separate the stage from seating areas for patrons.

C. The adult use shall provide permanent access for employees between the cabaret stage and employee dressing room facilities that are completely separated from the patrons. If the separate access is not physically feasible, the adult use shall provide a minimum four-foot-wide walk aisle for entertainers between the dressing room facilities and the cabaret stage, with a permanent rail system or other barrier separating the patrons and the employees using the stage to prevent any physical contact between patrons and the employees. Fixed rail(s) at least 30 inches in height shall be installed and permanently maintained, establishing the required separations between the entertainers and patrons.

D. No adult use patron shall offer, and no adult use employee having performed on any Cabaret Stage shall accept any form of tip or gratuity offered directly or personally to the employee by the adult use patron. Rather, all tips and gratuities to adult use employees performing on any cabaret stage shall be placed into a receptacle provided for receipt of such tips and gratuities by the adult use. Said receptacle shall be located at least six feet from all points of the stage. Tips shall only be collected and distributed by the operator or designated employee.

E. A sign at least two feet by two feet, with letters of at least one inch high shall be conspicuously displayed on or adjacent to every cabaret stage stating the following:

THIS ADULT CABARET IS REGULATED

BY THE CITY OF FAIRBORN.

EMPLOYEES ARE:

1. NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT.

2. NOT PERMITTED TO ACCEPT ANY TIPS DIRECTLY OR PERSONALLY FROM PATRONS. ANY SUCH TIPS MUST BE PLACED INTO THE RECEPTACLE PROVIDED BY MANAGEMENT.

3. NOT PERMITTED TO ENGAGE IN ANY LAP DANCE OR PRIVATE PERFORMANCE.

4. NOT PERMITTED TO ENGAGE IN ANY OTHER PUBLIC DANCE, PUBLIC PERFORMANCE OR EXHIBITION UNLESS CONDUCTED ENTIRELY WITHIN THE CONFINES OF A CABARET STAGE.

5. NOT PERMITTED TO APPEAR IN A STATE OF PUBLIC NUDITY.

F. Prohibited Activities. It shall be unlawful for an operator of an adult cabaret or other adult use to knowingly or with reason to know, permit, suffer or allow any employee:

i. To engage in a lap dance or private performance with a person at the establishment; or to contract or otherwise agree with a person to engage in a lap dance or private performance with a person at the establishment; or

ii. To engage in any other public dance, public performance or exhibition unless conducted on a cabaret stage as defined and regulated by Section 1126.07(a)(3); or

iii. To contract or otherwise agree with a person to engage in any specified sexual activity at the establishment; or

iv. To display or expose any specified anatomical area while simulating any specified sexual activity with any other person at the establishment, including with another employee; or

v. To allow any person to touch any portion of a clothed or unclothed body below the neck and above the knee, excluding that part of the employee's arm below the wrist, commonly referred to as the hand; or

vi. To appear in a state of semi-nudity unless such person is entirely within the confines of a cabaret stage; or

vii. To intentionally touch the clothed or unclothed body of any person at the adult use, excluding another employee, at any point below the neck and above the knee of the person, excluding that part of the person's arm below the wrist, commonly referred to as the hand.

viii. An adult cabaret shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room.

ix. An adult cabaret shall provide and display to the public, at a place near the main entrance of the establishment, information, brochures or pamphlets available from the Greene County Health Department specific to AIDS and other sexually transmitted diseases.

(b) Specific Requirements for Adult Arcades, Adult Bookstores, Adult Novelty Stores and Adult Video Stores.

(1) Window areas for adult arcades and stores shall not be covered or obstructed in any way.

(2) Any and all sexually oriented materials or sexually oriented merchandise characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas" discarded by any adult use shall be fully contained within a locked garbage receptacle at all times so that minors are not exposed to said materials or merchandise.

(3) Such adult uses shall provide and display to the public, at a place near the main entrance of the establishment, information, brochures or pamphlets available from the Greene County Health Department specific to AIDS and other sexually transmitted diseases.

(1) Seating. Each adult theater shall provide seating only in individual chairs with arms or in seats separated from each other by immovable arms and not on couches, benches, or any other multiple person seating structures. The number of seats shall equal the maximum number of persons who may occupy the adult theater.

(2) Aisles. Each adult theater shall have a continuous main aisle alongside the seating area in order that each person seated in the adult theater shall be visible from the aisle at all times.

(3) Signage. Each adult theater shall have a sign posted in a conspicuous place at or near each entranceway to the auditorium or similar area that lists the maximum number of persons who may occupy the auditorium area, which number shall not exceed the number of seats in the auditorium area.

(4) An adult theater shall provide and display to the public, at a place near the main entrance of the establishment, information, brochures or pamphlets available from the Greene County Health Department specific to AIDS and other sexually transmitted diseases.

(d) Specific Requirements for Adult Uses with Booths. Adult theaters and other adult uses that contain booths for the display of films, motion pictures, video cassettes, DVDs, slides, or other visual representations, shall comply with the following provisions:

(1) Have a sign posted in a conspicuous place at or near the entrance way which states that only one person may occupy the booth;

(2) Have a permanently open entrance way for each booth not less than three feet- two inches wide and not less than seven feet high, which shall never be closed or partially closed by any curtain, door or other partition which would be capable of wholly or partially obscuring any person situated in the booth; no curtains, doors or other partitions shall be affixed, attached or connected to the permanently open entrance way of any booth;

(3) Have one individual seat, not a couch, bench or the like;

(4) Have a continuous main aisle alongside the booth in order that each person situated in the booth shall be visible from the aisle at all times;

(5) Have, except for the open entrance way for each, for each booth walls or partitions of solid construction without any holes or openings in such walls or partitions; and

(6) Such adult uses shall provide and display to the public, at a place near the main entrance of the establishment, information, brochures or pamphlets available from the Greene County Health Department specific to aids and other sexually transmitted diseases.

(e) Specific Requirements for Nude Modeling Studios.

(1) A nude model studio shall not place or permit a bed, sofa, or mattress in any room on the premises, except that a sofa may be placed in a reception room or area open to the public.

(2) A nude model studio shall provide and display to the public, at a place near the main entrance of the establishment, information, brochures or pamphlets available from the Greene County Health Department specific to AIDS and other sexually transmitted diseases.