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To enact sections 3768.01, 3768.02, and 3768.03 of | 1 |
the Revised Code to generally regulate sexually | 2 |
oriented businesses. | 3 |
Section 1. That sections 3768.01, 3768.02, and 3768.03 of the | 4 |
Revised Code be enacted to read as follows: | 5 |
Sec. 3768.01. Sexually oriented business regulations | 6 |
(A) No sexually oriented business shall be or remain open for | 7 |
business between 12:00 midnight and 6:00 a.m. on any day, except | 8 |
that a sexually oriented business that holds a liquor permit | 9 |
pursuant to Chapter 4303. of the Revised Code may remain open | 10 |
until the hour specified in that permit, provided that it does not | 11 |
conduct, offer, or allow sexually oriented entertainment activity | 12 |
between 12:00 midnight and 6:00 a.m. | 13 |
(B) While on the premises of a sexually oriented business: | 14 |
(1) No employee, while nude or seminude, knowingly shall do | 15 |
any of the following: | 16 |
(a) Appear in the view of any patron unless the employee is | 17 |
at least six feet from all patrons and on a stage at least two | 18 |
feet above the floor; | 19 |
(b) Touch any patron or the clothing of any patron; or | 20 |
(c) While in the view of any patron, touch any other person | 21 |
who is nude or seminude; | 22 |
(2) No patron knowingly shall touch any employee while that | 23 |
employee is nude or seminude, or touch the clothing or costume of | 24 |
any employee while that employee is nude or seminude; | 25 |
(3) No employee of a sexually oriented business who regularly | 26 |
appears nude or seminude on the premises of that sexually oriented | 27 |
business shall knowingly be or remain within six feet of any | 28 |
patron. | 29 |
(C) Whoever violates division (A) of this section is guilty | 30 |
of illegally operating a sexually oriented business, a misdemeanor | 31 |
of the first degree. | 32 |
(D) Whoever violates division (B) of this section is guilty | 33 |
of illegal sexually oriented activity in a sexually oriented | 34 |
business, a misdemeanor of the first degree. | 35 |
Sec. 3768.02. Definitions. | 36 |
As used in this chapter: | 37 |
(A) "Adult bookstore" or "adult video store" means a | 38 |
commercial establishment that has as a significant or substantial | 39 |
portion of its stock in trade or inventory in, derives a | 40 |
significant or substantial portion of its revenues from, devotes a | 41 |
significant or substantial portion of its interior business or | 42 |
advertising to, or maintains a substantial section of its sales or | 43 |
display space for the sale or rental, for any form of | 44 |
consideration, of any of the following: books, magazines, | 45 |
periodicals, or other printed matter, or photographs, films, | 46 |
motion pictures, video cassettes, compact discs, slides, or other | 47 |
visual representations, that are characterized by their emphasis | 48 |
upon the exhibition or description of specified sexual activities | 49 |
or specified anatomical areas. | 50 |
(B) "Adult cabaret" means a nightclub, bar, juice bar, | 51 |
restaurant, bottle club, or other commercial establishment, | 52 |
regardless of whether alcoholic beverages are served, which | 53 |
regularly features any of the following: | 54 |
(1) Persons who appear in a state of nudity or seminudity; or | 55 |
(2) Live performances that are characterized by the exposure | 56 |
of specified anatomical areas or specified sexual activities. | 57 |
(C) "Adult motion picture theater" means a commercial | 58 |
establishment where films, motion pictures, videocassettes, | 59 |
slides, or similar photographic reproductions which are | 60 |
characterized by their emphasis upon the display of "specified | 61 |
sexual activities" or "specified anatomical areas" are regularly | 62 |
shown to more than five persons for any form of consideration. | 63 |
(D) "Characterized by" means describing the essential | 64 |
character or quality of an item. | 65 |
(E) "Employee" means any person who performs any service on | 66 |
the premises of a sexually oriented business, on a full time, part | 67 |
time, or contract basis, whether or not the person is denominated | 68 |
an employee, independent contractor, agent, or otherwise. | 69 |
"Employee" does not include a person exclusively on the premises | 70 |
for repair or maintenance of the premises or for the delivery of | 71 |
goods to the premises. | 72 |
(F) "Nudity," "nude" or "state of nudity" means the showing | 73 |
of the human male or female genitals, pubic area, vulva, or anus | 74 |
with less than a fully opaque covering, or the showing of the | 75 |
female breast with less than a fully opaque covering of any part | 76 |
of the nipple and areola. | 77 |
(G) "Operate" means to cause to function or to put or keep in | 78 |
a state of doing business. "Operator" means any person on the | 79 |
premises of a sexually oriented business who causes the business | 80 |
to function or who puts or keeps in operation the business or who | 81 |
is authorized to manage the business or exercise overall | 82 |
operational control of the business premises. | 83 |
(H) "Patron" means any person on the premises of a sexually | 84 |
oriented business except: | 85 |
(1) An operator or an employee of that sexually oriented | 86 |
business; or | 87 |
(2) A person who is on the premises exclusively for repair or | 88 |
maintenance of the premises or for the delivery of goods to the | 89 |
premises. | 90 |
(I) "Person" means an individual, proprietorship, | 91 |
partnership, corporation, association, or other legal entity. | 92 |
(J) "Premises" means the real property upon which the | 93 |
sexually oriented business is located, and all appurtenances | 94 |
thereto and buildings thereon, including, but not limited to, the | 95 |
sexually oriented business, the grounds, private walkways, and | 96 |
parking lots and/or parking garages adjacent thereto, under the | 97 |
ownership, control, or supervision of the licensee. | 98 |
(K) "Regularly" means and refers to the consistent or | 99 |
repeated doing of the act so described. | 100 |
(L) "Seminude" or "state of seminudity" means the showing of | 101 |
the female breast below a horizontal line across the top of the | 102 |
areola and extending across the top of the areola and extending | 103 |
across the width of the breast at that point, or the showing of | 104 |
the male or female buttocks. This definition shall include the | 105 |
lower portion of the human female breast, but shall not include | 106 |
any portion of the cleavage of the human female breasts exhibited | 107 |
by a bikini, dress, blouse, shirt, leotard, or similar wearing | 108 |
apparel provided the areola is not exposed in whole or in part. | 109 |
(M) "Sexual device" means any three dimensional object | 110 |
designed and marketed for stimulation of the male or female human | 111 |
genitals, anus, female breasts, or for sadomasochistic use or | 112 |
abuse of oneself or others and shall include devices such as | 113 |
dildos, vibrators, penis pumps, and physical representations of | 114 |
the human genital organs. Nothing in this division shall be | 115 |
construed to include devices primarily intended for protection | 116 |
against sexually transmitted diseases or for preventing pregnancy. | 117 |
(N) "Sexual device shop" means a commercial establishment | 118 |
that regularly features sexual devices. Nothing in this definition | 119 |
shall be construed to include any pharmacy, drug store, medical | 120 |
clinic, or any establishment primarily dedicated to providing | 121 |
medical or healthcare products or services, nor shall this | 122 |
definition be construed to include commercial establishments which | 123 |
do not restrict access to their premises by reason of age. | 124 |
(O) "Sexual encounter center" means a business or commercial | 125 |
enterprise that, as one of its principal business purposes, | 126 |
purports to offer for any form of consideration, physical contact | 127 |
in the form of wrestling or tumbling between persons of the | 128 |
opposite sex when one or more of the persons is nude or seminude. | 129 |
(P) "Sexually oriented business" means an adult bookstore or | 130 |
adult video store, an adult cabaret, an adult motion picture | 131 |
theater, a sexual device shop, or a sexual encounter center. For | 132 |
purposes of this chapter, no business shall be classified as a | 133 |
sexually oriented business by virtue of showing, selling, or | 134 |
renting materials rated NC-17 or R by the motion picture | 135 |
association of America. | 136 |
(Q) "Sexually oriented entertainment activity" means the | 137 |
sale, rental, or exhibition, for any form of consideration, of | 138 |
books, films, video cassettes, magazines, visual images, or live | 139 |
performances which are characterized by an emphasis on the | 140 |
exposure or display of any specified anatomical areas or specified | 141 |
sexual activity. | 142 |
(R) "Specified anatomical areas" means and includes human | 143 |
genitals, pubic region, buttocks, and female breast below a point | 144 |
immediately above the top of the areola. | 145 |
(S) "Specified sexual activity" means intercourse, oral | 146 |
copulation, masturbation, sodomy, or excretory functions as a part | 147 |
of or in connection with any of these activities. | 148 |
Sec. 3768.03. Rationale and findings; construction | 149 |
(A) It is the purpose of this chapter to promote the health, | 150 |
safety, and general welfare of the people of Ohio by establishing | 151 |
reasonable regulations to prevent the deleterious secondary | 152 |
effects of sexually oriented businesses. The regulations in this | 153 |
chapter have neither the purpose nor effect of imposing a | 154 |
limitation or restriction on the content or reasonable access to | 155 |
any communicative materials, including sexually oriented | 156 |
materials. | 157 |
(B) The prohibitions in this chapter are based upon and | 158 |
justified by the adverse secondary effects of sexually oriented | 159 |
businesses identified in numerous judicial decisions and reports | 160 |
concerning such secondary effects including, but not limited to: | 161 |
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002); | 162 |
City of Erie v. Pap's A.M., 529 U.S. 277 (2000); Barnes v. Glen | 163 |
Theatre, Inc., 501 U.S. 560 (1991); City of Renton v. Playtime | 164 |
Theatres, Inc., 475 U.S. 41 (1986), Young v. American Mini | 165 |
Theatres, 427 U.S. 50 (1976, California v. LaRue, 409 U.S. 109 | 166 |
(1972); Deja Vu of Cincinnati, L.L.C. v. Union Township Bd. of | 167 |
Trustees, 411 F.3d 777 (6th Cir. 2005) (en banc); DLS, Inc. v. | 168 |
City of Chattanooga, 107 F.3d 403 (6th Cir. 1997); 511 Detroit | 169 |
Street, Inc. v. Kelley, 807 F.2d 1293 (6th Cir. 1986); Broadway | 170 |
Books v. Roberts, 642 F. Supp. 486 (E.D. Tenn. 1986); Bright | 171 |
Lights, Inc. v. City of Newport, 830 F. Supp. 378 (E.D. Ky. 1993); | 172 |
Richland Bookmart, Inc. v. Nichols, 278 F.3d 570 (6th Cir. 2002); | 173 |
Richland Bookmart v. Nichols, 137 F.3d 435 (6th Cir. 1998); In re | 174 |
Tenn. Public Indecency Statute, Nos. 96-6512, 96-6573, 97-5924, | 175 |
97-5938, 1999 U.S. App. LEXIS 535 (6th Cir. Jan. 13, 1999); Bamon | 176 |
Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); City of | 177 |
Chattanooga v. Cinema 1, Inc., 150 S.W. 3d 390 (Tenn. Ct. App. | 178 |
2004); Deja Vu of Nashville, Inc., et al. v. Metropolitan | 179 |
Government of Nashville & Davidson County, 274 F.3d 377 (6th Cir. | 180 |
2001); Kentucky Restaurant Concepts, Inc. v. City of Louisville & | 181 |
Jefferson County, 209 F. Supp. 2d 672 (W.D. Ky. 2002); Ctr. for | 182 |
Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. | 183 |
2003); City of Cleveland v. Daher, 2000 Ohio App. LEXIS 5937 (Ohio | 184 |
Ct. App. 2000); State ex rel. Nasal v. BJS No. 2, Inc., 127 Ohio | 185 |
Misc. 2d 101 (Ct. Comm. Pleas 2003); Gammoh v. City of La Habra, | 186 |
395 F.3d 1114 (9th Cir. 2005); World Wide Video of Washington, | 187 |
Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Ben's Bar, | 188 |
Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); and | 189 |
Austin, Texas - 1986; Indianapolis, Indiana - 1984; Garden Grove, | 190 |
California - 1991; Houston, Texas - 1983, 1997; Phoenix, Arizona - | 191 |
1979, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, | 192 |
California - 1977; Spokane, Washington - 2001; St. Cloud, | 193 |
Minnesota - 1994; Dallas, Texas - 1997; Greensboro, North Carolina | 194 |
- 2003; New York, New York Times Square - 1994; Minneapolis, | 195 |
Minnesota (Holsopple Report)- 1998; Michigan Legislature (Sherman | 196 |
Testimony) - 2000; which support the following findings: | 197 |
(1) Sexually oriented businesses, as a category of commercial | 198 |
uses, are associated with a wide variety of adverse secondary | 199 |
effects including, but not limited to lewdness, public indecency, | 200 |
prostitution, potential spread of disease, illicit drug use and | 201 |
drug trafficking, personal and property crimes, negative impacts | 202 |
on surrounding properties, blight, litter, and sexual assault and | 203 |
exploitation. | 204 |
(2) Each of the foregoing negative secondary effects | 205 |
constitutes a harm which the state has a substantial government | 206 |
interest in preventing and/or abating. This substantial government | 207 |
interest in preventing secondary effects is independent of any | 208 |
comparative analysis between sexually oriented and non-sexually | 209 |
oriented businesses. The cases and documentation relied on in this | 210 |
chapter are reasonably believed to be relevant to said secondary | 211 |
effects. | 212 |
(C) The provisions of this chapter shall be construed so as | 213 |
to further the purposes of this chapter as set forth in division | 214 |
(A) of this section. | 215 |
(D) Nothing in this chapter shall be construed to preempt or | 216 |
prevent counties, municipal corporations and townships from | 217 |
adopting or enforcing laws concerning sexually oriented businesses | 218 |
that are as restrictive or more restrictive than the provisions in | 219 |
this chapter. | 220 |
Section 2. Severability. This chapter and each section, | 221 |
division and provision hereof is hereby declared to be independent | 222 |
such that if any such section, division or provision, or the | 223 |
application thereof to any person or circumstance, is held to be | 224 |
invalid, the remaining sections, divisions or provisions and the | 225 |
application of such sections, divisions or provisions to any | 226 |
person or circumstances other than those to which it is held | 227 |
invalid shall not be affected thereby. It is hereby declared that | 228 |
such sections, divisions and provisions would have been enacted | 229 |
independently of such section, divisions or provisions so known to | 230 |
be invalid. | 231 |