Azusa Municipal Code Div. 1 General

It is the purpose of this chapter to regulate adult businesses to promote the health, safety and general welfare of the citizens of the city. 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. It is recognized that adult businesses have a serious deleterious effect upon adjacent areas, as well as the areas in which they are located. It is therefore the purpose of this chapter to establish standards for the conduct of adult businesses which will protect the public health, safety and welfare, preserve locally recognized values of community appearance, minimize the potential for nuisances related to the operation of adult businesses, and maintain local property values.

In approving the regulations contained in this chapter, the city council has reviewed detailed studies, reports and letters prepared by other jurisdictions and its own staff with respect to the detrimental social, health and economic effects on persons and properties surrounding adult businesses. These studies included Upland, California (1992); Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); State of Minnesota, Attorney General Report (1989); Newport News, Virginia (1996); St. Paul, Minnesota (1987); Corpus Christi, Texas (1995); National Law Center (1995); and Azusa (2003) (collectively "Studies"). The Studies, a summary of which is attached hereto as Exhibit "A," substantiate the adverse, secondary effects of adult businesses.

A. Based on the foregoing studies and the other evidence presented, the city council finds that:

1. Adult businesses are linked to increases in the crime rates of those areas in which they are located and that surround them; and

2. Both the proximity of adult businesses to sensitive land uses and the concentration of adult businesses tend to result in the blighting and downgrading of the areas in which they are located.

3. Unregulated adult businesses create serious public health concerns and hazards since the studies and cases demonstrate that such businesses have been linked to the spread of communicable and sexually-transmitted diseases.

4. Special regulation of adult businesses is necessary to ensure that their adverse secondary effects will not contribute to an increase in the crime rates or the blighting or downgrading of the areas in which they are located or surrounding areas. The need for special regulation is based on the recognition that adult businesses have serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances or located in direct proximity to sensitive uses such as residential zones and uses, parks, schools, churches or day care centers.

5. It is the purpose and intent of these special regulations to prevent the establishment and operation of adult businesses in a manner that would create such adverse secondary effects. Thus, in order to protect and preserve the public health, safety, and welfare of the citizenry, especially minors, special regulations are necessary.

6. The protection and preservation of the public health, safety and welfare require that certain operational requirements for adult businesses also be imposed.

B. In adopting these regulations, the city council is mindful of legal principles relating to regulation of adult businesses and does not intend to suppress or infringe upon any expressive activities protected by the First Amendments of the United States and California Constitutions, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of adult businesses. The city council has considered decisions of the United States Supreme Court regarding adverse secondary effects and the local regulation of adult businesses, including but not limited to: Young v. American Mini Theaters. Inc., 427 U.S. 50 (1976) (Reh. denied 429 U.S. 873); Renton v. Playtime Theaters, 475 U.S. 41 (1986) (Reh. denied 475 U.S. 1132); FW/PBS. Inc. v. Dallas, 493 U.S. 215 (1990); Barnes v. Glenn Theater, 501 U.S. 560 (1991), and City of Erie v. Paps A.M. (2000) 529 U.S. (2000 Daily Journal DAR 3255), United States Court of Appeals 9th Circuit decisions, including but not limited to: Topanga Press, et al. v. City of Los Angeles, 989 F.2d 1524 (1993); Kev. Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), pet. For cert. Filed (1999); several California cases including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener, 3 Cal.4th 832 (1993); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); and City of Vallejo v. Adult Books, et al., 167 Cal.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On, Inc. v. Arlington (5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993) 10 F.3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074.

C. The city council hereby adopts each of the regulations contained in this article as a means to reasonably address the adverse secondary effects of adult businesses.

(Ord. No. 04-04, § 4, 3-1-04)

As used in this article, the following words and phrases shall have the meaning set forth below:

A. Adult businesses. An "adult business":

1. Is any business, where employees or patrons expose specified anatomical areas or engage in specified sexual activities, or any business which offers to its patrons services or entertainment characterized by an emphasis on matter depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas. Adult businesses do not include bona fide medical establishments operated by properly licensed and registered medical personnel with appropriate medical credentials for the treatment of patients.

In determining whether a use is an adult business, only conduct or activities which constitute a regular and substantial course of conduct or a use which has a majority of its floor area, stock-in-trade, or revenue derived from material characterized by an emphasis on matters depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas shall be considered. Isolated instances of conduct or activities described in this section as characterizing an adult business shall not be considered except where such activities, taken together, constitute a regular and substantial course of conduct;

2. Shall include, but shall not be limited to, the following:

a. Adult arcade. An "adult arcade" 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 maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.

b. Adult bookstore, novelty store, video/dvd store. "Adult bookstore, novelty store, video/dvd store," is an establishment which has as a substantial portion of its stock-in-trade, a majority of its floor area or revenue derived from and offering for sale for any form of consideration, any one or more of the following:

i. Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, video cassettes, slides or other visual representations which are characterized by an emphasis upon the depiction or description of 'specified anatomical areas;

ii. Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities; or

iii. Goods which are replicas of or which simulate, specified anatomical areas, or goods which are designed to be placed on or in specified anatomical areas, or to be used in conjunction with specified sexual activities to cause sexual excitement.

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 bookstore, adult novelty store or adult/video/dvd store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore, adult novelty store or adult/video/dvd store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

c. Adult cabaret. An "adult cabaret" is a bar, nightclub or similar establishment which features dancers, strippers or similar entertainers who expose specified anatomical areas of their bodies.

d. Adult motel. An "adult motel" means a hotel, motel or similar commercial establishment which:

i. Offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which 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 which advertises the availability of this adult type of photographic reproductions, or

ii. Offers a sleeping room for rent for a period of time that is less than ten hours, or

iii. Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.

e. Adult motion picture theater. An "adult motion picture theater" means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

f. Adult tanning salon. An "adult tanning salon" or "parlor" shall mean a business establishment where patrons receive tanning services in groups of two or more and where patrons or employees of the establishment expose specified anatomical areas. Adult tanning salon or parlor shall also include a business establishment where a patron and an employee of the establishment are nude or expose specified anatomical areas. An adult tanning salon or parlor shall also include a business establishment where the employees thereof are nude or expose specified anatomical areas.

g. Adult theater. An "adult theater" is any place, building, enclosure, theater, concert hall, auditorium or structure, partially or entirely used for live performances or presentations, which place, building, enclosure, theater, concert hall, auditorium or structure is used for presenting matter characterized by an emphasis on depicting, exposing, describing or relating to specified sexual activities or specified anatomical areas, for observation by patrons therein. Such place shall also include an adult theater wherein persons are regularly featured appearing in a state of nudity, on-going performances which are characterized by the exposure of specified sexual activities, or by specified anatomical areas.

h. Employee. "Employee" means a person who performs any service on the premises of an adult business on a full-time, part-time or contract basis, whether or not the person is denominated as an employee, independent contractor, agent or otherwise and whether or not said person is paid a salary, wage or other compensation by the operator of the adult business. Employee does not include a person exclusively on the premises to conduct repair or maintenance for the premises or equipment on the premises or for the delivery of goods to the premises.

i. Nude model studio. A "nude model studio" means any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be conversed with or be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons, for any form of consideration. Nude model studio shall not include any classroom of any school licensed under state law to provide art education, while such classroom is being used in a manner consistent with such state license.

j. Sex supermarket/sex mini-mall. A "sex supermarket/sex mini-mall" means the establishment or operation of more than one type of adult business or use as defined in this title within the same building.

k. Sexual encounter center. "sexual encounter center" means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:

i. Physical contact in the form of wrestling or tumbling between persons of the opposite sex, or

ii. Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or is semi-nude.

l. Reserved.

m. Sexually oriented business or adult business. A "sexually oriented business" or "adult business" is any business not otherwise defined or provided for herein where employees or patrons expose specified anatomical areas or engage in or simulate specified sexual activities, or any business which offers to its patrons services or entertainment characterized by an emphasis on matter depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas located, or proposed to be located, within the city.

B. Appeal. Wherever the reference to an "appeal" being filed or available to be filed, such right of appeal shall also include the right to appeal administrative determinations made by the city manager/designee in accordance with the procedures established in this article.

C. Person. "Person" means and includes person(s), firms, corporations, partnerships, associations or any other forms of business organization or group(s).

D. Specified anatomical areas. "specified anatomical areas" shall include any of the following human anatomical areas:

1. Less than completely and opaquely covered genitals, pubic regions, buttocks, anuses or female breasts below a point immediately above the top of the areola; or

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

E. Specified sexual activities. "specified sexual activities" includes all the following:

1. The fondling or other erotic touching of the following human anatomical areas: genitals, pubic regions, buttocks, anuses or female breasts;

2. Human sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;

3. Human masturbation, actual or simulated;

4. The actual or simulated infliction of pain by one human upon another, or by an individual upon himself or herself, for the purpose of the sexual gratification or release of either individual, as a result of flagellation, beating, striking or touching of an erogenous zone, including without limitation, the thigh, genitals, buttock, pubic region, or, if such person is a female, a breast;

5. Sexual intercourse, actual or simulated, between a human being and an animal; or

6. Excretory functions as part of or in connection with any of the activities set forth in subsections (E)(1) through (5), above.

F. Definitions. In addition to the terms defined above, the following words and phrases shall have the meaning as set forth below:

1. Couch dance or couch dancing. The term "couch dance" or "couch dancing" means an employee of an adult business intentionally touching any patron while engaged in the display or exposure of any specified anatomical area or while simulating any specified sexual activity.

2. Establishment. An "establishment" means and includes any of the following:

a. The opening or commencement of any adult business as a new business;

b. The conversion of an existing business, whether or not an adult business, to any adult business;

c. The addition of any adult business to any other existing adult business or to another existing adult business, with or without expansion of floor area;

d. The relocation of any adult business; or

e. The expansion or enlargement of the premises by ten percent or more of the existing floor area.

3. Nudity or a state of nudity. "Nudity" or a "state of nudity" means the showing of the human male or female genitals, buttocks, pubic area, vulva, anus, anal cleft or the female breast with less than a fully opaque covering of any part of the areola.

4. Private viewing area. "Private viewing area" means an area or areas in an adult business designed to accommodate no more than five or less patrons or customers for purposes of viewing or watching a performance, picture, show, film, videotape, slide, movie or other presentation. No private viewing areas shall be established, maintained or authorized, and there shall be no doors, curtains, stalls, or other enclosures creating a private viewing area.

5. School. "School" means any public or private educational institution which is run by the state or a subdivision thereof or which is licensed by the state to offer pre-school, elementary or secondary academic instruction, including kindergartens, elementary schools, middle or junior high schools, and high schools. For purposes of this definition, Azusa Pacific University shall also be considered a "school."

6. Semi-nude. "Semi-nude" means the showing of the male genitals or female breast below a horizontal line across the top of the areola at its highest point or the showing of a substantial portion of the male or female buttocks. This definition 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.

7. Specified criminal act. A "specific criminal act" also means "specified criminal acts" and includes sexual crimes against children; sexual abuse; rape; or crimes connected with another adult business including, but not limited to, the distribution of obscenity; convictions involving the distribution, display or sale of material harmful to minors; prostitution; or pandering. Specified criminal acts excludes those acts which are authorized or required to be kept confidential pursuant to Welfare and Institutions Code Sections 600 to 900.

8. Straddle dance or straddle dancing. The term "straddle dance" or "straddle dancing" shall have the same meaning as "couch dance" or "couch dancing" as defined in subsection (F)(1) of this section.

(Ord. No. 04-04, § 4, 3-1-04)