The intent of this subchapter is to regulate adult uses, also known as sexually-oriented businesses, through the application of uniform zoning and licensing requirements to promote the health, safety, morals and general welfare of the citizens of New Bremen and to establish reasonable and uniform regulations for the operation of sexually-oriented businesses with the goal of reducing or eliminating the adverse secondary effects associated with sexually-oriented businesses. It is not the intent of this zoning code to limit or restrict the content of communicative materials, including sexually-oriented materials. Similarly, it is not the intent nor effect of this zoning code to restrict or deny access by adults to materials protected by the First Amendment, or to deny access by the distributors and exhibitors of sexually-oriented entertainment to their intended market.

(Ord. 2005-6-25, passed 7-12-05)

   For the purpose of this subchapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

   ADULT USES, SEXUALLY-ORIENTED BUSINESSES OR ADULT ENTERTAINMENT FACILITY.Businesses defined as follows:

      (1)   ADULT BOOK STORE, ADULT NOVELTY STORE or ADULT VIDEO STORE. A commercial establishment which devotes a significant portion of its interior business or advertising (25% or more of its retail floor space) to the sale or rental, for any form of consideration or any one or more of the following:

         (a)   Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, DVD, CD-ROM, slides or other visual representations which are characterized by the depiction or description of "specified sexual activities" or "specified anatomical area" as defined herein.

         (b)   Instruments, devices or paraphernalia which are designed for use or marketed primarily for stimulation of human genital organs or for sadomasochistic use or abuse.

      (2)   ADULT CABARET. A night club, bar, restaurant or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features persons who appear nude or semi-nude; live performances which are characterized by the exposure of "specified anatomical area" or by "specified sexual activities" or films, motion pictures, video cassettes, DVD, CD-ROM, slides or other photographic reproductions which are characterized by the exposure of "specified anatomical area" or by "specified sexual activities".

      (3)   ADULT MOTEL. A motel, hotel or similar commercial establishment which offers public accommodation, for any form of consideration, which provides patrons with closed-circuit television transmission, films, motion pictures, video cassettes, DVD, CD-ROM, slide or other photographic reproductions which are characterized by the exposure of "specified anatomical area" or by "specified sexual activities".

      (4)   ADULT MOTION PICTURE THEATER. A commercial establishment where films, motion pictures, video cassettes, DVD, CD-ROM, slide or similar photographic reproductions which are characterized by the exposure of "specified anatomical area" or by "specified sexual activities" are shown for any form of consideration.

      (5)   ADULT THEATER. A theater, concert hall, auditorium or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity, or live performances which are characterized by the exposure of "specified anatomical area" or by "specified sexual activities".

      (6)   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 any form of consideration.

      (7)   MASSAGE PARLOR. Any place where, for any form of consideration, 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 such treatment, manipulation, or service related thereto, exposes his or her "specified anatomical areas." This definition shall not include the practice of massage in any licensed hospital, nor by any licensed hospital, licensed physician, chiropractor, or osteopathy; nor by any nurse or technician working under the supervision of a licensed physician, chiropractor or osteopath; nor by any trainers for amateur, semiprofessional, or professional athlete or athletic team or school athletic program nor by any Licensed Massage Therapist licensed in the State of Ohio pursuant to Ohio Revised Code.

      (8)   NUDE MODEL STUDIO. Any place where a person, who regularly appears in a state of nudity or displays "specified anatomical area" is provided for any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted.

      (9)   SEXUAL ENCOUNTER ESTABLISHMENT. A commercial establishment that, as one of its primary business purposes, offers for any form of consideration, a place where people may congregate, associate, or consort for the purpose of "sexually specified activities" or the exposure of "specified anatomical areas" or activities where one of more of the persons is in a state of nudity. This definition shall not include an establishment where medical practitioner, psychiatrist, or similar professional persons licensed by the state engages in medically approved and recognized sexual therapy.

   EMPLOYEE. A person who works or performs in and/or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage, or other compensation by the operator of said business.

   ESCORT. A person, who, for any form of consideration, agrees or offers to privately model lingerie or to privately perform a striptease for another person.

   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 of the sexually-oriented businesses defined in this zoning code.

      (3)   The addition of any of the sexually-oriented businesses defined in the zoning code to any other sexually-oriented business; or

      (4)   The relocation of any such sexually-oriented business.

   NUDITY or STATE OF NUDITY. The showing, representation or depiction of human male or female genitals, pubic area, or buttocks with less that a full, opaque covering; or of a female breast with less than a full, opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state.

   OPAQUE. Not allowing visibility through.

   OPERATOR. Includes the owner, permit holder, custodian, manager, operator or person in charge of any permitted or licensed premises.

   PERMITTED OR LICENSED PREMISES. Any premises that requires a license and/or permit and that is classified as a sexually-oriented business.

   PERMITTEE AND/OR LICENSEE. A person in whose name a permit and/or license to operate a sexually-oriented business has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.

   PERSON. An individual, proprietorship, partnership, corporation, association, or other legal entity.

      (1)   RELIGIOUS INSTITUTION. Any church, synagogue, mosque, temple, or building which is used primarily for religious worship and related activities.

      (2)   RESIDENTIAL DISTRICT OR USE. A single family, duplex, townhouse, multiple-family, retirement or nursing home, or mobile home park.

      (3)   SCHOOL. Any public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary schools, vocational schools, secondary schools, continuation schools, special education schools, junior colleges and universities. School includes the school grounds, but does not include any facilities used primarily for another purpose and only incidentally as a school.

   SEMI-NUDE. A state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast, as well as portions of the body covered by supporting straps or devices.

   SPECIFIED ANATOMICAL AREAS. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breast below a point immediately above the top of the areola; or human male genitals in a discernable turgid state, even if completely and opaquely covered.

   SPECIFIED SEXUAL ACTIVITIES. Includes any of the following:

      (1)   The fondling or other intentional touching of human genitals, pubic region, buttocks, anus or female breasts; or

      (2)   Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy; or

      (3)   Masturbation, actual or simulated; or

      (4)   Human genitals in a state of sexual stimulation or arousal.

   SPECIFIED CRIMINAL ACTS. Sexual crimes against children, sexual abuse, rape, gross sexual imposition and other crimes connected with sexually-oriented businesses including, but not limited, to distribution of obscenity or other material harmful to minors, pandering, prostitution, tax violations in connection with a sexually-oriented business, or acts prohibited by R.C. §§ 2907.24, 2907.241, or 2907.25.16.

   SUBSTANTIAL ENLARGEMENT OF A SEXUALLY-ORIENTED BUSINESS. Increase in the floor area occupied by the business by more that 15%, as the floor area exists as of the adoption of the Zoning Code.

   TRANSFER OF OWNERSHIP OR CONTROL OF A SEXUALLY-ORIENTED BUSINESS. Means and includes any of the following:

      (1)   The sales, lease or sublease of the business;

      (2)   The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means;

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

(Ord. 2005-6-25, passed 7-12-05)

   (A)   Adult uses shall be established only in zoning districts where they are primarily permitted.

   (B)   A sexually-oriented business lawfully operating as a conforming use is not rendered non-conforming by the subsequent location of a protected use within 1000 feet of the sexually-oriented business unless its permit and/or license has expired or been revoked.

(Ord. 2005-6-25, passed 7-12-05)

   (A)   No sexually-oriented business shall be permitted to operate without a valid sexually-oriented business permit issued by the village. Operation of such a business without a permit is a misdemeanor.

   (B)   The Village Administrator and Police Chief are jointly responsible for granting, denying, revoking, renewing, suspending and canceling permits for proposed or existing sexually-oriented businesses. To be approved, applications must comply with all the locational and zoning requirements of the village.

   (C)   Applications must be made on a form provided by the village. Applicants must provide an original and two copies of a sworn application which must contain the following information and documents.

      (1)   If the applicant is:

         (a)   An individual; the individual's legal name, aliases and proof of age over 18 by birth certificate or drivers license, social security number.

         (b)   A partnership; the complete name, all partner's names, and a copy of any partnership agreement.

         (c)    A corporation; its complete name, date of corporation; names of all officers, directors, and stockholders owning 10% or more of the shares, name and address of its registered agent and evidence of good standing under Ohio law.

      (2)   The name of the sexually-oriented business if different from the applicant's name and any registration documents.

      (3)   Whether the applicant or other individual(s) named in the application has been convicted of a misdemeanor criminal act within the five years immediately preceding the application date, or any felony regardless of the date of conviction, and if so, the act involved and the date and place of the conviction.

      (4)   Whether the applicant or other individual(s) named in the application has had a sexually-oriented business permit revoked, suspended or denied and the name of the business, the municipality or county of occurrence, and the date on which the permit was suspended, revoked or denied.

      (5)   Whether the applicant or other individual(s) named in the application held any other sexually-oriented business permits and the names and locations of all other such businesses.

      (6)   The proposed location of the business, including a legal description of the property, street address and telephone number.

      (7)   The business and residential addresses and telephone numbers of the applicant and other individual(s) named in the application. If the applicant or other individual(s) named in the application has been at his or her or its current address for less than five years, then all business and residential addresses of each individual for five years prior to the date of application must be included and the dates he or she or it was at each address indicated.

      (8)   The driver's license number, social security number, tax identification number and recent photograph of the applicant and other individual(s) named in the application.

      (9)   A current certificate and straight line drawing prepared by a registered land surveyor depicting the property lines of the proposed business and the property lines of any existing protected use within 1000 feet of the proposed business. A protected use is established if it is in existence at the time the application is submitted.

      (10)   The application must be signed by the individual applicant and all individual(s) named in the application.

      (11)   A signed release indicating the applicant’s understanding that the village, county and state criminal record checks, going back five years before the date of the application, will be performed for the applicant and all individual(s) named in the application.

         (a)   Applicants are under a continuing duty to promptly update their application information. Failure to do so within 30 days of the date of a change in application information shall be grounds for permit suspension.

         (b)   If the Village Administrator learns an applicant has improperly completed the permit application, the Administrator shall promptly notify the applicant and allow ten days for correction.

         (c)   A $100.00 non-refundable application fee is due at the time the applicant files an application.

         (d)   Concurrent with obtaining a permit to operate a sexually-oriented business, the applicant shall obtain certification that the proposed location complies with the location requirements of this zoning code.

         (e)   The possession of other types of state or village permits and/or licenses, including a liquor license, does not exempt an applicant from the requirement of obtaining a sexually-oriented business permit.

         (f)   By filing an application, the applicant shall be deemed to have consented to the provisions of this zoning code and to the investigation of the application by the Village Administrator and his or her designees.

         (g)   The applicant is required to provide the village with the names of all employees required to be licensed by this zoning code. This obligation continues even after a permit is granted or renewed.

         (h)   A sexually-oriented business permit may be renewed annually upon written application, subject to payment of the annual permit fee, and that the permit holder is still in conformance with the permit requirements.

   (D)   Upon receipt of an application, the village shall investigate to determine if the requirements of this zoning code have been met.

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   (A)   An application shall be granted or denied within 60 days from the date of its proper filing.

   (B)   Grant of application for permit:

      (1)   An application shall be granted if the requirements of this zoning code are met.

      (2)   The permit shall state on its face the name of the person or persons to whom it is granted and the address of the sexually-oriented business and the permit expiration date. The permit shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so it can be read at any time.

   (C)   Denial of application for permit:

      (1)   An application for permit may be denied for any of the following reasons:

         (a)   An applicant or any individual named in the application is under 18 years of age.

         (b)   An applicant or any individual named in the application is overdue on the payment of taxes, fees, fines or penalties assessed by the Village in relation to a sexually-oriented business.

         (c)   An applicant has failed to provide information as required by this zoning code or has supplied false information.

         (d)   The $100.00 application fee has not been paid.

         (e)   The proposed business does not comply with the requirements of this zoning code to be 1000 feet from a protected use.

         (f)   To grant the application would violate a statute, ordinance or court order.

         (g)   The applicant has a permit under this zoning code which has been revoked or suspended.

         (h)   The applicant has been convicted of a "specified criminal act" with the time limitation stated.

         (i)   An applicant has in his or her employ an employee who does not have a valid license as required by this zoning code.

      (2)   Applicants shall be promptly notified of an application denial and the reasons(s) for denial.

   (D)   The annual fee for a sexually-oriented business is $850.00.

(Ord. 2005-6-25, passed 7-12-05)

   Representatives of the Police Department shall be permitted to enter a sexually-oriented business to determine compliance with the requirements of this zoning code at any time it is occupied for business. Failure to allow inspection is unlawful and is a misdemeanor.

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   Each permit shall expire one year from the date of issuance and may be renewed by making an application at least 60 days before the expiration date, but no sooner than 90 days before the expiration date. If a renewal is denied, a new permit shall not be issued for one year from the date of denial. If the basis for denial has been corrected and at least 90 days have elapsed from the date the denial became final, a new permit may be granted.

(Ord. 2005-6-25, passed 7-12-05)

   A permit to operate a sexually-oriented business may be suspended until the violation causing the suspension has been corrected, provided the period is not to exceed 30 days, if a permittee or an employee of a permittee:

   (A)   Violates or is not in compliance with this zoning code; or

   (B)   Works at the sexually-oriented business while under the influence of alcohol or of a controlled substance; or

   (C)   Refuses to allow an inspection of the sexually-oriented business in accordance with this zoning code; or

   (D)   Permits gambling on the premises of the sexually-oriented business; or

   (E)   Transfers the sexually-oriented business permit to another in violation of this zoning code; or

   (F)   Employs a person without a valid employee license as required by this zoning code.

(Ord. 2005-6-25, passed 7-12-05)

   (A)   A permit to operate a sexually-oriented business shall be revoked upon a determination that either a permit is to be suspended for a second time within a 12-month period or that a permittee or an employee of a permittee:

      (1)   Gave false or misleading information on the permit application which enhanced the permittee's opportunity to obtain a permit; or

      (2)   Allowed the possession, sale or use of a controlled substance on the premises; or

      (3)   Allowed prostitution on the premises; or

      (4)   Operated the business while under permit suspension; or

      (5)   Has been convicted of a "specified criminal act" for which the time period required has not elapsed; or

      (6)   Committed a "specified criminal act" on the permitted premises on one or more occasions within a 12-month period while employed by the permit holder; or

      (7)   Has been convicted of tax violations for taxes or fees related to a sexually-oriented business; or

      (8)   Allowed any act of sexual intercourse, sexual conduct, or any other specified sexual activities to occur in or on the permitted premises; or

      (9)   Operated more than one sexually-oriented business under one roof.

   (B)   A permit shall be revoked for one year and a permittee shall not receive any other permits for any other sexually-oriented businesses during the one-year revocation period. If the basis for revocation is corrected, the applicant may be granted a new permit if at least 90 days have elapsed since the revocation became effective.

(Ord. 2005-6-25, passed 7-12-05)

   An applicant or permittee may seek review of a denial of an application, denial of a renewal of an application, suspension or revocation of a permit through the Village Council. If the denial, suspension or revocation is affirmed on review, the applicant or permittee may seek review of the administration decision in the Auglaize County Court of Common Pleas.

(Ord. 2005-6-25, passed 7-12-05)

   (A)   A permittee shall not operate a sexually-oriented business at any place other than the address designated in the application for permit.

   (B)   A permittee shall not transfer a permit to another person unless that person:

      (1)   Obtains an amendment to the permit upon the satisfactory completion of an application;

      (2)   Pays a transfer fee of 20% of the annual permit fee.

   (C)   A permit may not be transferred when the permittee has been notified that suspension or revocation proceedings have been brought against the permittee.

   (D)   A permit shall not be transferred to another location.

   (E)   Any transfer attempted in violation of this zoning code is void and will revoke the permit.

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   (A)   All employees of a sexually-oriented business are required to obtain a sexually-oriented business employee license ("employee license"). Each applicant shall pay a permit fee of $25 to cover reasonable administrative costs.

   (B)   On a form provided by the village, the applicant shall provide his or her:

      (1)   Name, including any "stage" name or aliases;

      (2)   Age, birth date and birthplace;

      (3)   Current resident and business addresses and phone numbers;

      (4)   Height, weight and hair and eye color.

      (5)   State driver's license or identification number and social security number;

      (6)   Proof of minimum age of 18;

      (7)   A color photograph and fingerprints on a form provided by the village;

      (8)   A statement detailing the license or permit history of the applicant for the previous five years including information as to whether a permit had ever been denied, revoked or suspended; the reason for such action; the date of such action and the jurisdiction in which such action occurred;

      (9)   Information as to whether the applicant has been convicted of a "specified criminal act" and the date, place, jurisdiction and nature of such conviction; and

      (10)   A signed release indicating the applicant's understanding that village, county and state criminal records checks, going back five years before the date of the applicant, will be performed for the applicant.

   (C)   The application review shall be completed within 15 days of filing. The employee license shall be issued unless the village finds that:

      (1)   The applicant knowingly made a false, misleading or fraudulent statement of material fact;

      (2)   The applicant is under 18 years of age;

      (3)   The applicant has been convicted of a "specified criminal act";

      (4)   The license is to be used in a business prohibited by the zoning code or other state or local law; or

      (5)   The applicant has had an employee license revoked within two years of the date of the current application.

   (D)   An employee license may be renewed annually upon written application subject to the payment of a $100 renewal fee and a finding that the applicant is still in conformance with the application requirements.

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   A person commits a misdemeanor if he or she operates or causes to be operated a sexually-oriented business:

   (A)   In any manner except as provided under this zoning code;

   (B)   Within 1000 feet of any protected use;

   (C)   Within 500 feet of any other sexually-oriented business;

   (D)   In the same building as an existing sexually-oriented business, or causes the substantial enlargement of any sexually-oriented business;

   (E)   Without a valid permit as required by this zoning code;

   (F)   In any zoning district other than I (Industrial).

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   A person commits a misdemeanor if he or she operates or causes to be operated a sexually-oriented business and knowingly or with reasonable cause to know, permit, suffer or allows:

   (A)   A person under 18 years of age to be admitted, remain or purchase goods or services at the business premises without the specific consent of a parent or guardian; or

   (B)   A person under 18 years of age to be employed at the premises.

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   A person commits a misdemeanor if he or she operates or causes to be operated a sexually-oriented business; or

   (A)   Advertises the presentation of any activity prohibited by this zoning code or other local or state regulation; or

   (B)   Displays or exhibits the materials and performances in advertising which is visible outside the premises except for advertising showing the existence or location of a sexually-oriented business; or

   (C)   Allows any portion of the interior premises to be visible from the outside of the establishment; or

   (D)   Fails to illuminate the premises entries and off-street parking areas from dusk until closing with a lighting system which provides an average maintained horizontal illumination of one-foot candle light on the parking surface and walkways.

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   A person commits a misdemeanor if he or she operates or causes to be operated a sexually-oriented business and allows the business to remain open, or to permit any employee to engage in a performance, solicit a performance, make a sale, provide a service or solicit a service between the hours of 1:00 a.m. and 9:00 a.m. of any particular day. Any employee who engages in the above activity also commits a misdemeanor.

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   Public nudity is prohibited in sexually-oriented businesses. Any sexually-oriented business which is found in violation of this zoning code shall have its permit suspended in addition to any other penalty provided by law.

(Ord. 2005-6-25, passed 7-12-05) Penalty, see § 152.99

   (A)   It is a defense to prosecution for violation of this zoning code that a person appearing in a state of nudity did so in a modeling class operated:

      (1)   By a college, junior college or university supported in whole or in part by taxation;

      (2)   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

      (3)   In a structure;

         (a)   Which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person in available for viewing; and

         (b)   Where, in order to participate in a class a student must enroll at least three days in advance of the class; and

         (c)   Where no more than one nude model is permitted at a time.

   (B)   It is a defense to prosecution that an employee of a sexually-oriented business exposed any specified anatomical area during the bona fide use of a rest room or dressing room accessible only to employees.

(Ord. 2005-6-25, passed 7-12-05)

   The village Police Department and all other village offices, agents and employees charged with enforcement of state and local laws and codes shall be immune from prosecution, civil or criminal, for reasonable, good faith trespass upon a sexually-oriented business while acting within the scope of authority conferred by this zoning code.

(Ord. 2005-6-25, passed 7-12-05)

   If any section, subsection or clause of this zoning code shall be deemed to be unconstitutional or other wise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby.

(Ord. 2005-6-25, passed 7-12-05)