Jennings County Unincorporated
City Zoning Code
City Zoning Code
SEXUALLY-ORIENTED BUSINESSES
§ 154.140 PURPOSE.
It is the purpose of this chapter to regulate sexually-oriented business and related activities to promote the health, safety and general welfare of the citizens of the county and to establish reasonable and uniform regulations to prevent the deleterious location and concentration of sexually-oriented business within the county. The provisions of this chapter 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 neither the intent nor the effect of this chapter to restrict or deny access by adults to sexually-oriented materials protected by the First Amendment or Article I, § 9, of the State Constitution, 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 chapter to condone or legitimize the distribution of obscene materials.
(Ord. passed 9-1-2006)
§ 154.141 ESTABLISHMENT OF A SEXUALLY-ORIENTED BUSINESS ZONING DISTRICT.
The following sexually-oriented business zoning district is established in the county and is abbreviated as indicated. Land within the county is classified, divided and zoned into said district as designated on the zoning maps, which maps are incorporated herein by reference and made a part of this chapter.
Sexually-Oriented Business District | Abbreviation |
Sexually-oriented business | SOB |
(Ord. passed 9-1-2006)
§ 154.142 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
ADULT ARCADE. 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, videos or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguishable or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
ADULT BOOKSTORE or ADULT VIDEO STORE.
(1) A commercial establishment that, as one of its principal business purposes, offers for sale or rental for any form of consideration any one or more of the following:
(a) Books, magazines, periodicals or other printed matter, or photographs, films, motion picture, video cassettes or video reproductions, slides or other visual representations that depict or describe specific sexual activities or specified anatomical areas; and/or
(b) Instruments, devices or paraphernalia that are designed for use in connection with specified sexual activities.
(2) A principal business purpose exists if materials offered for sale or rental depicting or describing specified sexual activities or specified anatomical areas generate 25% or more of the business’s income, or account for 25% or more of inventory, or occupy 25% or more of total floor space. A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing specified sexual activities or specified anatomical areas and still be categorized as an adult book store or adult video store. Such other business purpose will not serve to exempt such commercial establishments from being categorized as an ADULT BOOKSTORE or ADULT VIDEO STORE so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials that depict or describe specified sexual activities or specified anatomical areas.
ADULT CABARET. A nightclub, bar, restaurant, café or similar commercial establishment that regularly, commonly, habitually or consistently features:
(1) Persons who appear in a state of nudity or semi-nudity;
(2) Live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities;
(3) Films, motion pictures, video cassettes, digital video disks, slides, photographic reproduction or other image producing devices that are characterized by the depiction or description of specified sexual activities or specified anatomical areas; or
(4) Persons who engage in exotic or erotic dancing or performances that are intended for the sexual interests or titillation of an audience or customers.
ADULT MOTEL. A motel, hotel, or similar commercial establishment which:
(1) Offers accommodation to the public for any form of consideration and provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions that are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and has a sign visible from the public right-of-way that advertises the availability of this adult type of photographic reproductions;
(2) Offers a sleeping room for rent for a period of time that is less than ten hours; or
(3) Allows tenant or occupant of a sleeping room to sub-rent the room the room for a period of time that is less than ten hours.
ADULT MOTION PICTURE THEATER. A commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, digital video disks or similar photographic reproductions are regularly, commonly, habitually or consistently shown that are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
ADULT THEATER. A theater, concert hall, auditorium or similar commercial establishment that regularly, commonly, habitually or consistently features persons who appear, in person, in a state of nudity and/or semi-nudity, and/or live performances that are characterized by the exposure of specified anatomical areas or by specified sexual activities.
CHARACTERIZED BY. This term means 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.
COMMERCIAL SEXUAL ENTERTAINMENT CENTER. Any commercial establishment not otherwise described herein which as one of its principal uses regularly offers matter, services or entertainment appealing to adult sexual interests if the establishment or its entertainment, services or goods are advertised by or on behalf of the establishment in a manner patently designed to appeal to such adult sexual interests.
EMPLOYEE. A person who performs any service on the premises of a sexually-oriented business on a full-time, part-time, contract basis or independent basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise, and whether or not the said person is paid a salary, wage or other compensation by the operator of said business. EMPLOYEE does not include a person exclusively on the premises for repair or maintenance of the premises or equipment on the premises, or for the delivery of goods to the premises, nor does EMPLOYEE include a person exclusively on the premises as a patron or customer.
ESCORT. A person who, for consideration, agrees or offers to act as a companion, guide or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person.
ESCORT AGENCY. A person or business association who furnishes, offers to furnish or advertises to furnish escorts as one of its primary business purposes for a fee, tip or other consideration.
ESTABLISHMENT. Includes 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;
(3) The additions of any sexually-oriented business to any other existing sexually-oriented business;
(4) The relocation of any sexually-oriented business; or
(5) A sexually-oriented business or premises on which the sexually-oriented business is located.
LICENSEE. A person in whose name a license has been issued, as well as the individual listed as an applicant on the application for a license.
LIVE THEATRICAL PERFORMANCE. A play, skit, opera, ballet, concert, comedy or musical drama.
MASSAGE PARLOR. Any place where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment manipulation of the human body which occurs as a part of or in connection with specified sexual activities, or where any person providing this treatment, manipulation or service related thereto, exposes his or her specified anatomical areas. The definition of sexually-oriented businesses shall not include the practice of massage in any licensed hospital, nor by a licensed hospital, nor by a licensed physician, surgeon, chiropractor, osteopath or certified massage therapist, nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor, osteopath or certified massage therapist, nor by trainers for any amateur, semi-professional or professional athlete or athletic team or school athletic program.
NUDE MODEL STUDIO. Any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons for consideration.
NUDITY or STATE OF NUDITY. The appearance of a human bare buttock, anus, anal cleft or cleavage, pubic area, male genitals, female genitals or vulva, with less than a fully opaque covering; or a female breast with less than a fully opaque covering of any part of the areola; or human male genitals in a discernibly turgid state even if completely and opaquely covered.
OPERATE or CAUSE TO OPERATE. To cause to function, or to put or keep in a state of doing business.
OPERATOR. Any person on the premises of a sexually-oriented business who operates or manages the business or exercises overall control of the business premises. A person may be found to be operating or causing to be operated a sexually-oriented business regardless of whether that person is an owner, part owner or licensee of the business.
PERMITTED OR LICENSED PREMISES. Any premise that requires a license or permit and that is classified as a sexually-oriented business.
PERMITTEE is the same as LICENSEE.
PERSON. An individual, proprietorship, partnership, corporation, association or other legal entity.
PREMISES. 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 business license.
PRINCIPAL USE. A substantial or significant use, but not necessarily a majority of the business activity or stock in trade. The fact that a business may have one or more other PRINCIPAL USES unrelated to sexually-oriented business shall not relieve the business from the provisions of this chapter applicable to sexually-oriented business establishments. PRINCIPAL USE shall exist in the following circumstances:
(1) Where a business establishment dedicates, or permits the use of, at least 25% of the utilized square footage of its premises for sexually-oriented business activity or activities; or
(2) Where at least 25% of the gross receipts of a business establishment, excluding food and beverage receipts, result from sexually-oriented business activity or activities.
PUBLIC BUILDING. Any building owned, leased or held by the United States, the state, the county, a city, town, township, any special district, school district or any other agency or political subdivision of the state or the United States, which building is used for government purposes.
PUBLIC PARK or RECREATION AREA. Public land which has been designated for park or recreational activities, including, but not limited to, a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, pedestrian or bicycle paths, open space, wilderness areas or similar public land within the county which is under the control, operation or management of the United States, the state, the county, a city, town, township, any special district, school district or any other agency or political subdivision of the state or the United States.
REGULARLY. As used in the phrases herein such as “regularly features” and “regularly offers”, the term “regularly” means a consistent and repeated course of conduct engaged in or permitted by the operator of the business.
RELIGIOUS INSTITUTION. Any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities.
RESIDENCE. Any structure, manufactured home or mobile home used by one or more persons as a dwelling.
RESIDENTIAL DISTRICT OR USE. A single-family, duplex, townhouse, multiple-family or mobile home park or subdivision and campground as defined in the County Code.
SCHOOL. Any public or private educational facility, including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities. SCHOOL includes the school grounds, but does not include the facilities used primarily for another purpose and only incidentally as a school.
SELF-DESIGNATED SEXUALLY-ORIENTED BUSINESS CENTER. Any establishment which designates all or a portion of its premises as for adults only and has a policy of excluding minors from its premises or from a portion of its premises and which advertises so as to convey the impression that the services, entertainment, matter or goods available at the premises or at the portion of the premises designated for adults only are characterized or distinguished by displays of human genitals or sexual activities.
SEMI-NUDE OR SEMI-NUDITY. The appearance of the female breast below a horizontal line across the top of the areola at its highest point. This definition shall include the entire lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit or other wearing apparel provided the areola is not exposed in whole or in part.
SEMI-NUDE MODEL STUDIO. Any place where a person, who regularly appears in a state of semi-nudity, is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons.
SEX CLUB also known as a SWINGERS CLUB. An establishment which provides patrons the opportunity to voluntarily engage in and/or view live consensual sexual activity and which collects remuneration of any kind, including entrance fees, facility use fees, gratuities, fees for goods provided for in excess of their value and/or donations.
SEXUAL DEVICE. Any three-dimensional object designed and marketed for stimulation of the male or female human genital organ or anus, or for sadomasochistic use or abuse of oneself or others, and shall include devices such as dildos, vibrators and penis pumps, and shall also include other devices with non-sex related utility, such as leather whips, straps and ligatures, when such devices are marketed in a context suggesting sexual or sado-masochistic purposes. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy. Nothing in this definition shall be construed to restrict sales by any pharmacy, drug store, medical provider or any establishment primarily dedicated to providing medical or healthcare products or services.
SEXUAL DEVICE SHOP. 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.
SEXUAL ENCOUNTER CENTER OR ESTABLISHMENT.
(1) A business or commercial enterprise that, as one of its principal business purposes, offers for any form of consideration:
(a) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(b) Activities between persons of the opposite sex and/or persons of the same sex when one or more of the persons is in a state of nudity or semi-nudity.
(2) A principal business purpose exists if the services offered are intended to generate business income.
SEXUALLY-ORIENTED BUSINESS. An adult arcade, adult bookstore or adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model studio or sexual encounter center.
SPECIFIED ANATOMICAL AREAS. Includes any of the following:
(1) The human male genitals in a discernibly turgid state, even if fully and opaquely covered; or
(2) Less than completely and opaquely covered human genitals, pubic region, buttocks or a female breast below a point immediately above the top of the areola.
SPECIFIED CRIMINAL ACTIVITY. Includes any of the following offenses:
(1) Prostitution or promotion of prostitution; dissemination of obscenity; sale, distribution or display of harmful material to a minor; sexual performance by a child; possession or distribution of child pornography; public lewdness; indecent exposure; indecency with a child; sexual assault; molestation of a child; or any similar sex-related offenses to those described above under the criminal or penal code of this state, other states or other countries;
(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;
(b) Less than five 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 felony offense; or
(c) Less than five years have elapsed since the date of the last conviction or the date of release from confinement imposed for the last conviction, whichever is the later date, if the convictions are for two or more misdemeanor offenses or combination of misdemeanor offenses occurring within any 24-month period.
(3) The fact that a conviction is being appealed shall have no effect on the disqualification of the applicant.
SPECIFIED SEXUAL ACTIVITIES. Includes any of the following:
(1) The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts, whether covered or uncovered;
(2) Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;
(3) Masturbation, actual or simulated; or
(4) Excretory functions as part of or in connection with any of the activities set forth in divisions (1) through (3) above.
SUBSTANTIAL ENLARGEMENT OF SEXUALLY-ORIENTED BUSINESS. The increase in floor areas occupied by the business by more than 15%, as the floor areas existed on the effective date of this chapter.
TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY-ORIENTED BUSINESS. Includes any of the following:
(1) The sale, lease or sublease of the business;
(2) The transfer of securities that form 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 that 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. passed 9-1-2006)
§ 154.143 CLASSIFICATION.
Sexually oriented business uses are classified as either non-live entertainment, or live entertainment, as follows:
(A) Non-live entertainment shall include:
(1) Adult arcades;
(2) Adult bookstores or adult video stores;
(3) Adult motels; or
(4) Adult motion picture theaters.
(B) Live entertainment shall include:
(1) Adult theaters;
(2) Adult cabarets;
(3) Escort agencies;
(4) Nude model studios; or
(5) Sexual encounter centers.
(Ord. passed 9-1-2006)
§ 154.144 LOCATION RESTRICTIONS.
Sexually-oriented businesses shall only be permitted in any Sexually-Oriented Business (SOB) Zoning District provided that:
(A) The sexually oriented business may not be operated within:
(1) One thousand feet of a church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities;
(2) One thousand feet of a public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary schools, continuation schools, special education school, junior colleges and universities; school includes the school ground, but does not include facilities used primarily for another purpose and only incidentally as a school;
(3) One thousand feet of a public park or recreational area which has been designated for park or recreational activities including but not limited to a park, playground, nature trails, swimming pool, reservoir, athletic field, basketball or tennis courts, skating rink, pedestrian/bicycle paths, wilderness areas or other similar public land within the village which is under the control, operation or management of the village park and recreation authorities;
(4) One thousand feet of a property line of a zoned lot for residential or mixed-use and devoted to a residential or mixed-use as defined in the zoning ordinance; or
(5) One thousand feet of another sexually oriented business.
(B) A sexually-oriented business may not be operated in the same building, structure or portion thereof, containing another sexually oriented business that is classified in accordance with § 154.143 Classification.
(C) All uses established or placed into operation after the effective date of this chapter shall comply with the following performance standards. No use in existence on the effective date of this chapter shall be so altered or modified as to conflict with these standards.
(1) Vibration. No use shall cause earth vibrations or concussions detectable beyond the lot lines without the aid of instruments.
(2) Smoke, particulate matter, noxious matter. No use shall emit smoke of a density exceeding that of a normal commercial establishment. No use shall be permitted to burn any materials or chemicals other than standard heating fuels such as fuel oil, propane or natural gas, with the exception of food preparation facilities. Commercial operations which require the burning of other materials must be approved by the Area Plan Commission.
(3) Odor. No use shall emit across the lot lines odor in such quantity as to be readily detectable at any point along the lot lines and as to be detrimental to or endanger the public health, safety or welfare or cause injury to property.
(4) Sound. No use shall produce sound in such a manner as to endanger the public health, safety or welfare or cause injury to property. Sound shall be muffled so as not to become detrimental due to intermittence, beat frequency, shrillness or vibration.
(5) Heat and glare. No use shall produce heat or glare creating a hazard perceptible from any point beyond lot lines.
(6) Waste matter. No use shall accumulate within the lot or discharge beyond the lot lines any waste matter, whether liquid or solid, in violation of the applicable standards and regulations of the Department of Environment Management or in such a manner as to endanger the public health, safety or welfare or cause injury to property.
(7) Junk automobiles (vehicles). Vehicles not in operating condition and parked at a commercial location more than 30 days may be removed from the property with the notification by certified mail to vehicle owner. These vehicles will be towed at owner’s expense to a holding area for 30 days and then disposed of to a legal salvage yard. Notification and removal will be under court and police supervision. A show cause hearing will not be held for these violations.
(8) Unnecessary clutter. No one shall be permitted to heap, litter or strew in a confused and disorderly manner, any materials or objects on property owned leased or rented for commercial purposes.
(9) Burning of materials. No use shall permit burning of any materials or chemicals except as fuels in approved heating or manufacturing process facilities.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.145 MEASUREMENT OF DISTANCE.
(A) The distance between any two sexually-oriented businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any sexually-oriented business and any religious institution, school, boys club, girls club, public park or any residence or property zoned for residential use, shall be measured in a straight line, without regard to intervening structures or objects, from the nearest portion of the building or structure used as part of the premises where the sexually oriented business is conducted, to the nearest property line of the premises of a religious institution, school, boys club, girls club, public park or any residence or property zoned for residential use.
(B) For purposes of division (A) above, the distance between any two sexually-oriented business uses shall be measured in a straight line, without regard to intervening structures or objects, from the closest exterior wall of the structure in which each business is located.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.146 EXEMPTIONS.
(A) It is a defense to prosecution under this chapter that a person appearing in a state of nudity did so in a modeling class operated:
(1) By a proprietary school, licensed by the state, a college, junior college or university supported entirely or partly by taxation; or
(2) By a private college or university that maintains and operates educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation.
(B) Notwithstanding any other provision in this chapter, movies rated G, PG, PG-13 or R, by the Motion Picture Association of America (MPAA), or live theatrical performances with serious artistic, social, or political value, that depict or describe specified anatomical areas or specified sexual activities, are expressly exempted from regulation under this chapter.
(C) It is a defense to prosecution for a violation of this chapter that an employee of a sexually-oriented business, regardless of whether or not it is permitted under this chapter, exposed any specified anatomical area during the employee’s bona fide use of a restroom, or during the employee’s bona fide use of a dressing room which is accessible only to employees.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.147 NON-CONFORMING USES.
(A) Any business lawfully operating on the effective date of this chapter that is in violation of the location or structural configuration requirements of this chapter shall be deemed a non-conforming use. The non-conforming use will be permitted to operate for a period not to exceed one year following the effective date of this chapter in order to make a reasonable recoupment of its investment in its current location. Such non-conforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually-oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually oriented business that was first established and continually operated at a particular location is the conforming use and the later-established business(es) is non-conforming.
(B) A sexually-oriented business lawfully operating as a conforming use is not rendered a non-conforming use by the location, subsequent to the grant or renewal of the sexually-oriented business license, of a church, synagogue or regular place of religious worship, public or private elementary or secondary school, licensed day-care center, public park or residential district within 1,000 feet of the sexually-oriented business. This provision applies only to the renewal of a valid business license, and does not apply when an application for a business license is submitted after an operator’s license has expired or has been revoked.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.148 PERMITS; ENFORCEMENT RESPONSIBILITY.
(A) It shall be unlawful and a person is in violation of this chapter if he or she operates or causes to be operated a sexually-oriented business without this permit. (See permit fee schedule on file with the Area Plan Commission.)
(B) The County Area Plan Commission is responsible for granting, denying, revoking, renewing, suspending and canceling sexually-oriented business permits for proposed or existing sexually-oriented businesses. The Area Plan Commission of the county is also responsible for ascertaining whether a proposed sexually oriented business for which a permit is being applied for complies with all locational requirements and all applicable zoning laws.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.149 APPLICATION PROCEDURE.
(A) No person shall maintain, operate, conduct or cause to be conducted, any sexually-oriented business within the limits of the county without first obtaining a permit under this section.
(B) Applications for a sexually-oriented business permit, whether original or renewal, must be made to the Area Plan Commission by the intended operator of the enterprise. An application shall be considered complete if it includes the information required in this section. The applicant shall be qualified according to the provisions of this chapter. The application is complete when it includes the information and items required in divisions (B)(1) and (B)(2) below.
(1) The following information shall be provided on the application form:
(a) The full true name of the applicant, and any other names or aliases used in the preceding five years;
(b) The applicant’s current street address (and mailing address if different);
(c) Proof that the applicant is at least 18 years of age, consisting of either:
1. A copy of the applicant’s birth certificate and current photo;
2. A copy of the applicant’s driver’s license with picture; or
3. Another picture identification document issued by a government agency.
(d) The name of the business, the business location and legal description of the property and a description of the type of sexually oriented business;
(e) A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but shall 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;
(f) A signed statement stating the following:
1. That the business is authorized by the state to conduct business within the state;
2. That the site being applied for meets the requirements of § 154.144 of this chapter; and
3. The name and address of the statutory agent or other agent authorized to receive service of process.
(g) If a person wishing to operate a sexually-oriented business is an individual, he or she shall sign the application for a permit as applicant. If an entity (partnership, corporation, limited liability company or the like) or group of individuals seeks to obtain a permit, each individual with 30% or greater ownership interest must sign as an applicant under oath and provide the information required in this section.
(2) The applicant shall be required to pay a non-refundable application fee as set forth in the Permit Fee Schedule on file with the Area Plan Commission.
(3) The information provided by an applicant in connection with the application for a permit under this chapter shall be maintained by the county on a confidential basis, and may be disclosed only:
(a) To other governmental agencies in connection with a bona fide law enforcement or public safety function; or
(b) As may otherwise be required by law or a court order.
(4) Applicants for a permit under this section shall have a continuing duty to promptly supplement application information required by this section in the event that the information changes in any way from what is stated on the application. The failure to comply with this continuing duty within 30 days from the date of the change by supplementing the application on file with the Area Plan Commission shall be grounds for suspension of a permit.
(5) In the event that the Building Commissioner or his or her designee determines or learns at any time that the applicant has improperly completed the application for a proposed sexually-oriented business, the Building Commissioner shall promptly notify the applicant of that fact and allow the applicant ten days to properly complete the application. The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.150 INVESTIGATION.
(A) Upon receipt of an application properly filed with the county and upon payment of the nonrefundable application fee, the Area Plan Commission shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to the county agencies responsible for enforcement of this chapter. Each department or agency shall promptly conduct an investigation of the applicant, application and the proposed sexually-oriented business in accordance with its responsibilities under law and as set forth in this chapter. The investigation shall be completed within 20 days of receipt of the application by the county. At the conclusion of its investigation, each department or agency shall indicate on the photocopy of the application its approval or disapproval of the application, date it, sign it and in the event it disapproves, state the reasons therefore.
(B) After its indication of approval or disapproval, each department or agency shall immediately return the photocopy of the application to the county.
(Ord. passed 9-1-2006)
§ 154.151 ISSUANCE OR DENIAL OF PERMIT.
(A) The Area Plan Commission shall either issue a permit or a written denial to the applicant within 30 days of the receipt of the application.
(B) After the investigation, the Area Plan Commission shall issue a sexually-oriented business permit, unless it is determined that one or more of the following is true:
(1) The applicant is under the age of 18 years;
(2) The applicant has failed to provide the information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form;
(3) The premises to be used for the sexually-oriented business are not in compliance with the location requirements of § 154.144;
(4) The applicant failed to pay the non-refundable permit application fee; and/or
(5) The applicant has had a sexually-oriented business permit revoked within the previous year.
(C) The granting of a sexually-oriented business permit to a permitee shall be for a period of one year and non-transferable to any other person other than the applicant listed on the application and is valid only for the location listed on the application.
(Ord. passed 9-1-2006)
§ 154.152 FEES.
The application fee for a sexually-oriented business is listed in the permit fee schedule on file with the Area Plan Commission.
(Ord. passed 9-1-2006)
§ 154.153 INSPECTION.
A sexually-oriented business permittee shall permit representatives of the Police Department and/or the Health Department to inspect the premises at any time the establishment is open for business. Such inspection shall be limited to visual assessment of the activities conducted in areas to which patrons have access or are allowed access; to requests for inspection of the licenses required under this chapter; and to requests for identification of those individuals who reasonably appear to be under the age of 18.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.154 EXPIRATION OF PERMIT.
Each permit shall expire one year from the date of issuance and may be renewed only by making application as provided in § 154.149. Application for renewal shall be made not more than 120 days and not less than 90 days before the expiration date, and when made less than 90 days before the expiration date, the expiration of the permit will not be affected.
(Ord. passed 9-1-2006)
§ 154.155 SUSPENSION.
The county shall issue a written notice of intent to suspend a permit for a period not to exceed 30 days if a permittee has knowingly violated any section of this chapter or has knowingly allowed an employee of the sexually-oriented business to violate this chapter. The issuance of a written notice of intent to suspend shall not be a prerequisite to issuance of a written notice of intent to revoke a permit per § 154.156.
(Ord. passed 9-1-2006)
§ 154.156 REVOCATION.
(A) The Area Plan Commission or its designee shall issue written notice of intent to revoke a permit if a cause of suspension in § 154.155 occurs and the permit has been suspended for any reason within the preceding 12 months.
(B) The Area Plan Commission or its designee shall issue written notice to revoke a permit if:
(1) A permittee gave materially false or misleading information in the material submitted during the application process;
(2) A permittee has, with knowledge, permitted the possession, use or sale of controlled substances on the premises;
(3) A permittee has, with knowledge, permitted prostitution on the premises;
(4) A permittee has, with knowledge, operated the sexually-oriented business during a period of time when the permittee’s permit was suspended; or
(5) A permittee has, with knowledge, permitted any act of sexual intercourse, sodomy, oral copulation, masturbation or other sexual conduct to occur in or on the licensed premises.
(C) When the county revokes a permit, the revocation shall continue for one year, and the permittee shall not be issued a permit for one year from the date revocation became effective.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.157 ADMINISTRATIVE AND JUDICIAL REVIEW.
(A) If facts exist for denial, suspension or revocation of a permit under this chapter, the Area Plan Commission shall notify the applicant or permittee (respondent) in writing of the intent to deny, suspend or revoke the permit, including the grounds therefor, by personal delivery or by certified mail. The notification shall be directed to the most current business address on file with the Area Plan Commission. Within five working days of receipt of such notice, the respondent may provide to the Area Plan Commission, in writing, a response that shall include a statement of reasons why the permit should not be denied, suspended or revoked. Within three days of the receipt of respondent’s written response, the Area Plan Commission shall notify respondent in writing of the hearing date on respondent’s denial, suspension or revocation proceeding.
(B) Within ten working days of the receipt of respondent’s written response, the Area Plan Commission shall conduct a hearing at which respondent shall have the opportunity to be represented by counsel and present evidence and witnesses on his or her behalf. The Area Plan Commission shall issue a written opinion and decision within five days of the hearing. If a response is not received by the Area Plan Commission in the time provided or if after a hearing, the Area Plan Commission finds that grounds as specified in this chapter exist for denial, suspension or revocation, then such denial, suspension or revocation shall become final five days after the Area Plan Commission sends, by certified mail, written notice that the permit has been denied, suspended or revoked. Such notice shall include a statement advising the applicant or permittee of the right to appeal such decision to a court of competent jurisdiction.
(C) If the Area Plan Commission finds that no grounds exist for denial, suspension or revocation of a permit, then within five days after the hearing, the Area Plan Commission shall withdraw the intent to deny, suspend or revoke the permit, and shall so notify the respondent in writing by certified mail of such action and, in the case of an application for a permit, shall contemporaneously issue the permit.
(D) (1) When a decision to deny, suspend or revoke a permit becomes final, the applicant or permittee (aggrieved party) whose application for a permit has been denied, or whose permit has been suspended or revoked, shall have the right to appeal such action to a court of competent jurisdiction.
(2) The following shall apply to businesses that have previously obtained a license under this chapter: upon the filing of any court action to appeal, challenge, restrain or otherwise enjoin the county’s enforcement of the denial, suspension or revocation, the county shall immediately issue the aggrieved party a provisional permit. The provisional permit shall allow the aggrieved party to continue operation of the sexually-oriented business, and will expire upon the court’s entry of a judgment on the aggrieved party’s action to appeal, challenge, restrain or otherwise enjoin the county’s enforcement.
(Ord. passed 9-1-2006)
§ 154.158 NO TRANSFER OF PERMIT.
(A) A permittee shall not transfer his or her permit to another, nor shall a permittee operate a sexually-oriented business under the authority of a permit at any other place than the address designated in the application and set forth in the operator’s permit.
(B) An operator’s permit shall not be transferable from one location to another.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.159 MINORS ON PREMISES PROHIBITED.
A person is in violation of this chapter if he or she operates or causes to be operated a sexually-oriented business, regardless of whether or not a permit has been issued for that business under this chapter, and knowingly or with reasonable cause to know, permits, suffers or allows:
(A) Admittance of a person under 18 years of age to the business premises;
(B) A person under 18 years of age to remain at the business premises;
(C) A person under 18 years of age to purchase goods or services at the business premises; or
(D) A person who is under 18 years of age to work at the business premises as an employee.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.160 EXTERIOR PORTIONS OF SEXUALLY-ORIENTED BUSINESSES.
(A) It shall be unlawful for an owner or operator of a sexually-oriented business to allow the merchandise or activities of the establishment to be visible from a point outside the establishment.
(B) It shall be unlawful for the owner or operator of a sexually-oriented business to allow the exterior portion of the sexually-oriented business to have flashing lights, or any words, lettering, photographs, silhouettes, drawings or pictorial representations of any matter except to the extent permitted by the provisions of this chapter.
(C) All off-street parking areas and premise entries of the sexually-oriented business shall be illuminated from dusk to closing hours of operation with a lighting system which provides an average maintained horizontal illumination of one foot-candle of light on the parking surface and walkways. This required lighting level is established in order to provide sufficient illumination of the parking areas and walkways serving the sexually-oriented business for the personal safety of patrons and employees and to reduce the incidence of vandalism and criminal conduct. The lighting shall be shown on the required sketch or diagram of the premises. (For further parking regulations see §§ 154.120 through 154.126.)
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.161 HOURS OF OPERATION.
(A) No sexually-oriented business may remain open at any time between the hours of 11:00 p.m. and 7:00 a.m. of any particular day.
(B) This section shall not apply to prohibit the operation of businesses licensed by the state Alcoholic Beverage Commissioner during the lawful hours of operation as provided by the state Alcoholic Beverage Commission.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.162 PUBLIC NUDITY PROHIBITED.
(A) The U.S. Supreme Court decision in Barnes v. Glen Theatre, Inc. 501 U.S., Ill. S.Ct. 2456, (June 21, 1991), which upheld the rights of local governments to prohibit live public exposure of a person’s private parts, specifically applies to sexually-oriented businesses, regardless of whether or not a permit has been issued to those businesses under this chapter, including those businesses where no alcoholic beverages are sold, served or consumed at the premises.
(B) Public nudity is prohibited within the county, including any sexually-oriented business. Any sexually-oriented business which is found in violation of this section shall have its permit suspended pursuant to the provisions of § 154.155 Suspension of this chapter.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.163 OPERATION WITHOUT VALID PERMIT PROHIBITED.
A person is in violation of this chapter if he or she operates or causes to be operated a sexually-oriented business, regardless of whether or not a permit has been issued for that business under this chapter, and that person knows or should know that:
(A) The business does not have a sexually-oriented business permit under this chapter for any applicable classification;
(B) The business has a permit which is under suspension;
(C) The business has a permit which has been revoked; or
(D) The business has a permit which has expired.
(Ord. passed 9-1-2006) Penalty, see § 154.999
§ 154.164 CULPABLE MENTAL STATE REQUIRED TO ESTABLISH LIABILITY.
Where any provision or offense herein fails to state a necessary level of culpability to establish a violation or liability, the offense shall be established upon a showing that the person acted knowingly or recklessly with regard to the predicate act. Notwithstanding anything to the contrary, for the purposes of this chapter, an act by an employee shall be imputed to the sexually oriented business permittee for the purpose of establishing a violation of this chapter, or for purposes of license denial, suspension or revocation only if a permittee allowed, either knowingly or recklessly, a violation of this chapter to occur.
(Ord. passed 9-1-2006)
§ 154.165 INJUNCTION.
A person who operates or causes to be operated a sexually-oriented business in violation of this chapter, is subject to a suit for injunction. If any injunction must be sought, attorney’s fees and costs will be assessed at the discretion of the court against the violator.
(Ord. passed 9-1-2006)
§ 154.166 SEXUALLY-ORIENTED BUSINESS LOT LAYOUTS.
TABLE 17-1: SEXUALLY-ORIENTED BUSINESS LOT LAYOUTS
SOB
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SOB
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Lot Size | |
Minimum corner lot width (1) | 120 feet |
Minimum lot area | 15,000 square feet |
Minimum lot width (1) | 100 feet |
Setbacks and Yards | |
Minimum open space | 10% |
Minimum rear yard | 25 feet |
Minimum setback (2) | 50 feet |
Minimum side yard | 15 feet |
Structure Size | |
Maximum height | 35 feet |
Minimum area per floor | 1,000 square feet |
Minimum floor area | 1,000 square feet |
(1) Lot width is measured at the building line. (2) Any side of a lot that faces a public street or public right-of-way shall be considered a front and shall have the appropriate setback, measured from the centerline of the road or street. Under no circumstance shall the front yard setback be less than 25 feet from the right-of-way line. | |
(Ord. passed 9-1-2006; Ord. 04, 2008, passed 6-23-2008)