2006 Ohio Revised Code - 2907.38. Permitting unlawful operation of viewing booths depicting sexual conduct.

§ 2907.38. Permitting unlawful operation of viewing booths depicting sexual conduct.
 

(A)  As used in this section: 

(1) "Commercial establishment" means an entity that is open to the public and to which either of the following applies: 

(a) It has a substantial or significant portion of its stock in trade of the sale, rental, or viewing of visual materials or performances depicting sexual conduct. 

(b) It has as a principal business purpose the sale, rental, or viewing of visual materials or performances depicting sexual conduct. 

(2) "Visual materials or performances" means films, videos, CD-ROM discs, streaming video, or other motion pictures. 

(B)  No person who has custody, control, or supervision of a commercial establishment, with knowledge of the character of the visual material or performance involved, shall knowingly permit the use of, or offer the use of, viewing booths, stalls, or partitioned portions of a room located in the commercial establishment for the purpose of viewing visual materials or performances depicting sexual conduct unless both of the following apply: 

(1) The inside of each booth, stall, or partitioned room is visible from, and at least one side of each booth, stall, or partitioned room is open to, a continuous and contiguous main aisle or hallway that is open to the public areas of the commercial establishment and is not obscured by any curtain, door, or other covering or enclosure. 

(2) No booth, stall, or partitioned room is designed, constructed, pandered, or allowed to be used for the purpose of encouraging or facilitating nudity or sexual activity on the part of or between patrons or members of the public, and no booth, stall, or partitioned room has any aperture, hole, or opening for the purpose of encouraging or facilitating nudity or sexual activity. 

(C)  It is an affirmative defense to a charge under this section that either of the following applies to the involved visual materials or performances: 

(1) The visual materials or performances depicting sexual conduct are disseminated or presented for a bona fide medical, scientific, educational, religious, governmental, judicial, or other proper purpose and by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, member of the clergy, prosecutor, judge, or other person having a proper interest in the visual materials or performances. 

(2) The visual materials or performances depicting sexual conduct, taken as a whole, would be found by a reasonable person to have serious literary, artistic, political, or scientific value or are presented or disseminated in good faith for a serious literary, artistic, political, or scientific purpose and are not pandered for their prurient appeal. 

(D)  Whoever violates this section is guilty of permitting unlawful operation of viewing booths depicting sexual conduct, a misdemeanor of the first degree. 
 

HISTORY: 151 v H 23, § 1, eff. 8-17-06.
 

Not analogous to former RC § 2907.38 (RS § 6849a; 82 v 247; 99 v 460; GC §§ 12471, 12475, 12475-1; 124 v 360; 124 v 466; Bureau of Code Revision, 10-1-53), repealed 134 v H 511, § 2, eff 1-1-74.

The provisions of § 3 of 151 v H 23 read as follows: 

SECTION 3. In enacting new sections 503.51 and 503.52 and sections 2907.38 and 2907.39 of the Revised Code, the General Assembly makes the following statement of intent and findings: 

(A)(1) Adult entertainment establishments require special supervision from the public safety agencies of this state in order to protect and preserve the health, safety, morals, and welfare of the patrons and employees of the businesses as well as the citizens of this state. 

(2) The General Assembly finds that adult entertainment establishments are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature. 

(3) The concern over sexually transmitted diseases is a legitimate health concern of this state that demands reasonable regulation of adult entertainment establishments by the state in the specified manner, and expanded authority for reasonable regulation of adult entertainment establishments by local governments, in order to protect the health and well-being of the citizens. 

(4) Minimal regulations enacted by local governments or the state are a legitimate and reasonable means of accountability to ensure that operators of adult entertainment establishments comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places of illegal sexual activity or solicitation. 

(5) There is convincing documented evidence that adult entertainment establishments, because of their very nature, have a deleterious effect on both the existing businesses around them and the surrounding residential areas adjacent to them and cause increased crime, particularly in the overnight hours, and the downgrading of property values. 

(6) The General Assembly desires to minimize and control these adverse effects by regulating adult entertainment establishments in the specified manner and by expanding the authority of local governments to regulate adult entertainment establishments and, by minimizing and controlling these adverse effects, to protect the health, safety, and welfare of the citizenry; protect the citizens from increased crime; preserve the quality of life; preserve the property values and character of surrounding neighborhoods; and deter the spread of urban blight. 

(7) The General Assembly has determined that current local zoning and other locational criteria do not adequately protect the health, safety, and general welfare of the people of this state and that expanded local government authority to regulate adult entertainment establishments is necessary. 

(8) It is not the intent of the General Assembly in enacting this act to suppress, or authorize the suppression of, any speech activities protected by the First Amendment but to enact content-neutral statutes that expand local government authority to address the secondary effects of adult entertainment establishments. 

(9) It is not the intent of the General Assembly to condone or legitimize the distribution of obscene material, and the General Assembly recognizes that state and federal law prohibits the distribution of obscene materials and expects and encourages state law enforcement officials to enforce state obscenity statutes against any such illegal activities in this state. 

(B) It is the intent of the General Assembly in enacting new sections 503.51 and 503.52 and sections 2907.38 and 2907.39 of the Revised Code to regulate in the specified manner, and to expand the authority of local governments to regulate, adult entertainment establishments in order to promote the health, safety, morals, and general welfare of the citizens of this state and establish reasonable regulations to prevent the deleterious secondary effects of adult entertainment establishments within this state. The provisions of new sections 503.51 and 503.52 and sections 2907.38 and 2907.39 of the Revised Code have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of the General Assembly in enacting new sections 503.51 and 503.52 and sections 2907.38 and 2907.39 of the Revised Code to restrict or deny, or authorize the restriction or denial of, access by adults to sexually oriented materials protected by the First Amendment, or to deny, or authorize the denial of, access by the distributors and exhibitors of adult entertainment and adult materials to their intended market. Neither is it the intent nor effect of the General Assembly in enacting new sections 503.51 and 503.52 and sections 2907.38 and 2907.39 of the Revised Code to condone or legitimize the distribution or exhibition of obscene material. 

(C) Based on evidence concerning the adverse secondary effects of adult uses on communities presented in hearings and in reports made available to the legislature and on findings incorporated in the cases of City of Littleton, Colorado v. Z.J. Gifts D-4, L.L.C. (2004), 541 U.S. 774, City of Erie v. Pap's A.M. (2000), 529 U.S. 277; Barnes v. Glen Theatre, Inc. (1991), 501 U.S. 560; City of Renton v. Playtime Theatres, Inc. (1986), 475 U.S. 41; Young v. American Mini Theatres (1976), 426 U.S. 50; California v. LaRue (1972), 409 U.S. 109; DLS, Inc. v. City of Chattanooga (6th Cir. 1997) 107 F.3d 403; East Brooks Books, Inc. v. City of Memphis, (6th Cir. 1995), 48 F.3d 220; Harris v. Fitchville Township Trustees (N.D. Ohio 2000), 99 F. Supp.2d 837; Bamon Corp. v. City of Dayton (S.D. Ohio 1990), 730 F. Supp. 90, aff'd (6th Cir. 1991), 923 F.2d 470; Broadway Books v. Roberts (E.D. Tenn. 1986), 642 F. Supp. 486; Bright Lights, Inc. v. City of Newport (E.D. Ky. 1993), 830 F. Supp. 378; Richland Bookmart v. Nichols (6th Cir. 1998), 137 F.3d 435; Deja Vu v. Metro Government (6th Cir. 1999), 1999 U.S. App. LEXIS 535; Threesome Entertainment v. Strittmather (N.D. Ohio 1998), 4 F.Supp.2d 710; J.L. Spoons, Inc. v. City of Brunswick (N.D. Ohio 1999), 49 F. Supp.2d 1032; Triplett Grille, Inc. v. City of Akron (6th Cir. 1994) 40 F.3d 129; Nightclubs, Inc. v. City of Paducah (6th Cir. 2000), 202 F.3d 884; O'Connor v. City and County of Denver (10th Cir. 1990), 894 F.2d 1210; Deja Vu of Nashville, Inc., et al. v. Metropolitan Government of Nashville and Davidson County (6th Cir. 2001), 2001 U.S. App. LEXIS 26007; State of Ohio ex rel. Rothal v. Smith (Ohio C.P. 2002), Summit C.P. No. CV 01094594; Z.J. Gifts D-2, L.L.C. v. City of Aurora (10th Cir. 1998), 136 F.3d 683; Connection Distrib. Co. v. Reno (6th Cir. 1998), 154 F.3d 281; Sundance Assocs. v. Reno (10th Cir. 1998), 139 F.3d 804; American Library Association v. Reno (D.C. Cir. 1994), 33 F.3d 78; American Target Advertising, Inc. v. Giani (10th Cir. 2000), 199 F.3d 1241; and other cases and on reports of secondary effects occurring in and around adult entertainment establishments in Phoenix, Arizona (1984); Minneapolis, Minnesota (1980); Houston, Texas (1983); Indianapolis, Indiana (1984); Amarillo, Texas (1977); Garden Grove, California (1991); Los Angeles, California (1977); Whittier, California (1978); Austin, Texas (1986); Seattle, Washington (1989); Oklahoma City, Oklahoma (1986); Cleveland, Ohio (1977); Dallas, Texas (1997); St. Croix County, Wisconsin (1993); Bellevue, Washington (1998); Newport News, Virginia (1996); Tucson, Arizona (1990); St. Paul, Minnesota (1988); Oklahoma City, Oklahoma (1986 and 1992); Beaumont, Texas (1982); New York, New York (1994); Ellicottville, New York (1998); Des Moines, Iowa (1984); Islip, New York (1980); Adams County, Colorado (1987); Manatee County, Florida (1987); New Hanover County, North Carolina (1989); Las Vegas, Nevada (1978); Cattaraugas County, New York (1998); Cleburne, Texas (1997); Dallas, Texas (1997); El Paso, Texas (1986); New York Times Square study (1994); Report to ACLJ on the Secondary Impacts of Sex Oriented Businesses (1996); the findings from the Report of the Attorney General's Working Group On The Regulation Of Sexually Oriented Businesses (June 6, 1989, State of Minnesota); and on testimony to Congress in 136 Cong. Rec. S. 8987; 135 Cong. Rec. S. 14519; 135 Cong. Rec. S. 5636, 134 Cong. Rec. E. 3750; and also on findings from the paper entitled "Stripclubs According to Strippers: Exposing Workplace Sexual Violence," by Kelly Holsopple, Program Director, Freedom and Justice Center for Prostitution Resources, Minneapolis, Minnesota; and from "Sexually Oriented Businesses: An Insider's View," by David Sherman, presented to the Michigan House Committee on Ethics and Constitutional Law, Jan. 12, 2000; and from various other police reports, testimony, newspaper reports, and other documentary evidence, the General Assembly finds: 

(1) Adult entertainment establishments lend themselves to ancillary unlawful and unhealthy activities that are presently uncontrolled by the operators of the establishments. Further, there is presently no statewide mechanism, and no general or comprehensive grant of authority enabling local governments, to make the owners of these establishments responsible for the activities that occur on their premises. 

(2) Certain employees of adult entertainment establishments, as defined in section 2907.39 of the Revised Code as adult theaters and cabarets, engage in a higher incidence of certain types of illicit sexual behavior than employees of other establishments. 

(3) Sexual acts, including masturbation and oral and anal sex, occur at adult entertainment establishments, especially those that provide private or semiprivate booths or cubicles for viewing films, videos, or live sex shows. The "couch dances" or "lap dances" that frequently occur in adult entertainment establishments featuring live nude or seminude dancers constitute or may constitute the offense of "engaging in prostitution" under section 2907.25 of the Revised Code. 

(4) Offering and providing such space encourages such activities, which creates unhealthy conditions. 

(5) Persons frequent certain adult theaters, adult arcades, and other adult entertainment establishments for the purpose of engaging in sexual activity within the premises of those adult entertainment establishments. 

(6) Numerous communicable diseases may be spread by activities occurring in sexually oriented businesses, including, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpes, hepatitis salmonella, campylobacter and shigella infections, chlamydial, myoplasmal and ureoplasmal infections, trichomoniasis, and chancroid. 

(7) Since 1981 and to the present, there has been an increasing cumulative number of reported cases of AIDS caused by the human immunodeficiency virus (HIV) in the United States: 600 in 1982, 2,200 in 1983, 4,600 in 1984, 8,555 in 1985, and 253,448 through December 31, 1992. 

(8) A total of 10,255 AIDS cases had been reported in Ohio as of January 1999. Ohio has required HIV case reporting since 1990, and the reported information shows 7,969 people living with (HIV) (4,213) and (AIDS) (3,756) in the state. 

(9) Since 1981 and to the present, there have been an increasing cumulative number of persons testing positive for the HIV antibody test in Ohio. 

(10) The number of cases of early (less than one year) syphilis in the Unites States reported annually has risen. 33,613 cases were reported in 1982, and 45,200 cases were reported through November 1990. 

(11) The number of cases of gonorrhea in the United States reported annually remains at a high level, with over one-half million cases being reported in 1990. 

(12) The Surgeon General of the United States in his report of October 22, 1986, has advised the American public that AIDS and HIV infection may be transmitted through sexual contact, intravenous drug abuse, and exposure to infected blood and blood components, and from an infected mother to her newborn. 

(13) According to the best scientific evidence, AIDS and HIV infection, as well as syphilis and gonorrhea, are principally transmitted by sexual acts. 

(14) Sanitary conditions in some adult entertainment establishments are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and the operators of the facilities to self-regulate those activities and maintain those facilities. 

(15) The findings noted in divisions (C)(1) to (14) of this section raise substantial governmental concerns. 

(16) Adult entertainment establishments have operational characteristics that should subject them to reasonable government regulation in order to protect those substantial governmental concerns. 

(17) The enactment of new sections 503.51 and 503.52 and sections 2907.38 and 2907.39 of the Revised Code will promote the general welfare, health, morals, and safety of the citizens of this state.