Miamisburg City Zoning Code

CHAPTER 1299

Sexually Oriented Businesses

1299.01 RATIONALE AND FINDINGS.

(a) Purpose. It is the purpose of this ordinance to regulate sexually oriented businesses in order to promote the health, safety, moral, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects 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 or reasonable access to any communicative materials, including sexually oriented materials. Similarly, it is neither the intent nor 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.

(b) Findings and Rationale. Based on evidence of the adverse secondary effects of adult uses presented in hearings and in reports made available to the City Council, and on findings, interpretations, and narrowing constructions incorporated in the cases of City of Littleton v. ZJ. Gifts D-4, L.L.C., 541 U.S. 774 (2004); City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); City of Erie v. Pap’s A.M., 529 U.S. 277 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini Theatres, 427 U.S. 50 (1976), Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); California v. LaRue, 409 U.S. 109 (1972); and DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); Brandywine, Inc. v. City of Richmond, 359 F.3d 830 (6th Cir. 2004); Currence v. City of Cincinnati, Nos. 00-3985, 00-4041, 2002 U.S. App. LEXIS 1258 (6th Cir. Jan. 24, 2002); Broadway Books v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986); Bright Lights, Inc. v. City of Newport, 830 F. Supp. 378 (E.D. Ky. 1993) ; Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998); In re Tenn. Public Indecency Statute, Nos. 96-6512, 96-6573, 97-5924., 97-5938, 1999 U.S. App. LEXIS 535 (6th Cir. Jan. 13, 1999).; Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir. 1994); City of Knoxville v. Entertainment Resources, L.L.C., 166 S.W.3d 650 (Tenn. 2005); City of Chattanooga v. Cinema I, Inc., 150 S.W.3d 390 (Tenn. Ct. App. 2004); O’Connor v. City & County of Denver, 894 F.2d 1210 (10th Cir. 1990); Deja vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville & Davidson County, 274 F.3d 377 (6th Cir. 2001); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th Cir. 1998); ILQ Investments, Inc. v. City of Rochester, 25 F.3d 1413 (8th Cir. 1994) ; Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710 (N.D. Ohio 1998); Bigg Wolf Discount Video Sales, Inc. v. Montgomery County, 256 F. Supp. 2d 385 (D. Md. 2003); Kentucky Restaurant Concepts, Inc. v. City of Louisville & Jefferson County, 209 F. Supp. 2d 672 (W.D. Ky. 2002); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); Restaurant Ventures v. Lexington-Fayette Urban County Gov’t, 60 S.W.3d 572 (Ky. Ct. App. 2001); Ctr. for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Deja Vu of Cincinnati, L.L.C. v. Union Township Bd Of Trustees, 411 F.3d 777 (6th Cir. 2005) (en banc); State ex rel. Nasal v. BJS No. 2, Inc., 127 Ohio Misc. 2d 101 (Ct. Comm. Pleas 2003); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); and based upon reports concerning secondary effects occurring in and around sexually oriented businesses, including, but not limited to, Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove, California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona - 1979, 1995, 1997; Chattanooga, Tennessee - 1999-2003; Minneapolis, Minnesota - 1980; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2000, 2001, 2002; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; New York, New York Times Square - 1994; and the Report of the Attorney General’s Working Group On The Regulation Of Sexually Oriented Businesses, (June 6, 1989, State of Minnesota), the City Council finds:

(1) Sexually oriented businesses, as a category of commercial uses, are associated with a wide variety of adverse secondary effects including, but not limited to, personal and property crimes, prostitution, potential spread of disease, lewdness, public indecency, obscenity, illicit drug use and drug trafficking, negative impacts on surrounding properties, urban blight, litter, and sexual assault and exploitation.

(2) Sexually oriented businesses should be separated from sensitive land uses to minimize the impact of their secondary effects upon such uses, and should be separated from other sexually oriented businesses, to minimize the secondary effects associated with such uses and to prevent an unnecessary concentration of sexually oriented businesses in one area.

(3) Each of the foregoing negative secondary effects constitutes a harm which the City has a substantial government interest in preventing and/or abating. This substantial government interest in preventing secondary effects, which is the City’s rationale for this ordinance, exists independent of any comparative analysis between sexually oriented and non-sexually oriented businesses. Additionally, the City’s interest in regulating sexually oriented businesses extends to preventing future secondary effects of either current or future sexually oriented businesses that may locate in the City. The City finds that the cases and documentation relied on in this ordinance are reasonably believed to be relevant to said secondary effects.

(Ord. 5989. Passed 7-3-07.)

1299.02 DEFINITIONS.

(a) For purposes of this chapter, the words and phrases defined in the sections hereunder shall have the meanings therein respectively ascribed to them unless a different meaning is clearly indicated by the context.

(1) “Adult Bookstore or Adult Video Store.” A commercial establishment which, as one of its principal business activities, offers for sale or rental for any form of consideration any one or more of the following: books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, compact discs, digital video discs, slides, or other visual representations which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas.”

A. A “principal business activity” exists where the commercial establishment:

1. Has a substantial portion of its displayed merchandise which consists of said items, or

2. Has a substantial portion of the wholesale value of its displayed merchandise which consists of said items, or

3. Has a substantial portion of the retail value of its displayed merchandise which consists of said items, or

4. Derives a substantial portion of its revenues from the sale or rental, for any form of consideration of said items, or

5. Maintains a substantial section of its interior business space for the sale or rental or said items; or

6. Maintains an “adult arcade,” which means any place to which the public is permitted or invited wherein coin-operated or slug-operated or electronically, electrically, or mechanically controlled still or motion picture machines, projectors, or other image-producing devices are regularly maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are characterized by their emphasis upon matter exhibiting “specified sexual activities” or “specified anatomical areas.”

(2) “Adult Cabaret.” A nightclub, bar, juice bar, restaurant, bottle club, or other commercial establishment, whether or not alcoholic beverages are served, which regularly features persons who appear semi-nude.

(3) “Adult Motion Picture Theater.” A commercial establishment where films, motion pictures, videocassettes, slides, or similar photographic reproductions which are characterized by their emphasis upon the display of “specified sexual activities” or “specified anatomical areas” are regularly shown to more than five persons for any form of consideration.

(4) “Characterized By.” Describing the essential character or quality of an item. As applied in this chapter, no business shall be classified as a sexually oriented business by virtue of showing, selling, or renting materials rated NC-17 or R by the Motion Picture Association of America.

(5) “City.” Miamisburg, Ohio.

(6) “Establish or Establishment.” Shall mean and include any of the following:

A. The opening or commencement of any sexually oriented business as a new business;

B. The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business; or

C. The addition of any sexually oriented business to any other existing sexually oriented business.

(7) “Nudity or a State of Nudity.” The showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola.

(8) “Operate or Cause to Operate.” To cause to function or to put or keep in a state of doing business. “Operator” means any person on the premises of a sexually oriented business who causes the business to function or who puts or keeps in operation the business or who is authorized to manage the business or exercise overall operational control of the business premises. A person may be found to be operating or causing to be operated a sexually oriented business whether or not that person is an owner, part owner, or licensee of the business.

(9) “Person.” Individual, proprietorship, partnership, corporation, association, or other legal entity.

(10) “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 sexually oriented business license.

(11) “Regularly.” The consistent and repeated doing of the act so described.

(12) “Semi-Nude or State of Semi-Nudity.” The showing of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or the showing of the male or female buttocks. This definition shall include the lower portion of the human female breast, but shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress, blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.

(13) “Semi-Nude Model Studio.” A place where persons regularly appear in a state of semi-nudity for money or any form of consideration in order to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.

This definition does not apply to any place where persons appearing in a state of semi-nudity did so in a modeling class operated:

A. By a college, junior college, or university supported entirely or partly by taxation;

B. By a private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or

C. In a structure:

1. Which has no sign visible from the exterior of the structure and no other advertising that indicates a semi-nude person is available for viewing; and

2. Where, in order to participate in a class a student must enroll at least three days in advance of the class.

(14) “Sexual Device.” Any three-dimensional object designed and marketed for stimulation of the male or female human genitals, anus, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices such as dildos, vibrators, penis pumps, and physical representations of the human genital organs. Nothing in this definition shall be construed to include devices primarily intended for protection against sexually transmitted diseases or for preventing pregnancy.

(15) “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, nor shall this definition be construed to include commercial establishments which do not restrict access to their premises by reason of age.

(16) “Sexual Encounter Center.” A business or commercial enterprise that, as one of its principal business purposes, purports to offer for any form of consideration, physical contact in the form of wrestling or tumbling between persons of the opposite sex when one or more of the persons is semi-nude.

(17) “Sexually Oriented Business.” An “adult bookstore or adult video store,” an “adult cabaret,” an “adult motion picture theater,” a “semi-nude model studio,” a “sexual device shop,” or a “sexual encounter center.”

(18) “Specified Anatomical Areas” includes:

A. Human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and

B. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

(19) “Specified Sexual Activity.” Any of the following:

A. Intercourse, oral copulation, masturbation or sodomy; or

B. Excretory functions as a part of or in connection with any of the activities described in (a) above.

(20) “Substantial.” At least 35% of the item(s) so modified.

(21) “Transfer of Ownership or Control” of a sexually oriented business shall mean any of the following:

A. The sale, lease, or sublease of the business;

B. The transfer of securities which constitute an influential interest in the business, whether by sale, exchange, or similar means; or

C. The establishment of a trust, gift, or other similar legal device which transfers the ownership or control of the business, except for transfer by bequest or other operation of law upon the death of the person possessing the ownership or control.

(Ord. 5989. Passed 7-3-07.)

1299.03 CLASSIFICATION.

The classifications for sexually oriented businesses shall be as follows:

(a) Adult bookstore or adult video store;

(b) Adult cabaret;

(d) Semi-nude model studio;

(e) Sexual device shop;

(f) Sexual encounter center.

(Ord. 5989. Passed 7-3-07.)

1299.04 LOCATION OF SEXUALLY ORIENTED BUSINESSES.

(a) Sexually oriented businesses shall not be required to obtain a conditional use permit or special use permit.

(b) Sexually oriented businesses shall be permitted uses within the I-1 (Light Industrial District) and I-2 (General Industrial District) zoning districts.

(c) It shall be unlawful to establish, operate, or cause to be operated a sexually oriented business in Miamisburg, unless said sexually oriented business is at least:

(1) One thousand feet from any parcel occupied by another sexually oriented business or by a business licensed by the State of Ohio to sell alcohol for on premise consumption; and

(2) One thousand feet from any parcel occupied by a house of worship, public or private elementary or secondary school, public park, hotel, motel or any property zoned for or used for residential purposes.

(d) For the purpose of this section, measurements shall be made in a straight line in all directions without regard to intervening structures or objects, from the closest part of any structure, including signs and roof overhangs, used in conjunction with the sexually oriented business to the closest point on a property boundary associated with any of the land use(s) identified in subsection (c) above.

(e) Any sexually oriented business lawfully operating on the affective date of this chapter, that is in violation of subsection (a) or (b) of this section shall be deemed a nonconforming use. Such nonconforming 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 which was first established and continually operating at a particular location is the conforming use and the later established business(es) is/are nonconforming.

(f) A sexually oriented business lawfully in operation as a conforming use is not rendered a nonconforming use by the later establishment of a use listed in subsection (b) of this section within 1,000 feet of the sexually oriented business.

(Ord. 5989. Passed 7-3-07.)

1299.05 SEVERABILITY.

This chapter and each section and provision of said chapter hereunder, are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said chapter, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Should any procedural aspect of this chapter be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this chapter.