Division 7 — SEXUALLY ORIENTED BUSINESSES

(a)

Purpose. It is the purpose of this division to regulate sexually oriented businesses in order to promote the health, safety, 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 division 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 division 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 division 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. Z.J. 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); N.Y. State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); and Fantasyland Video, Inc. v. County of San Diego, 505 F.3d 996 (9th Cir. 2007); Tollis, Inc. v. County of San Diego, 505 F.3d 935 (9th Cir. 2007); World Wide Video of Washington, Inc. v. City of Spokane, 368 F.3d 1186 (9th Cir. 2004); Spokane Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th Cir. 1996); Dream Palace v. Maricopa County, 384 F.3d 990 (9th Cir. 2004); Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003); Talk of the Town v. City of Las Vegas, 343 F.3d 1063 (9th Cir. 2003); Deja Vu-Everett-Federal Way, Inc. v. City of Federal Way, 46 Fed. Appx. 409 (9th Cir. Aug. 20, 2002); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982); Tily B., Inc. v. City of Newport Beach, 69 Cal. App. 4th 1 (Cal. Ct. App. 1998); Sundance Saloon, Inc. v. City of San Diego, 213 Cal. App. 3d 807 (Cal. Ct. App. 1989); E.W.A.P., Inc. v. City of Los Angeles, 65 Cal. Rptr. 2d 325 (Cal. Ct. App. 1997); City of National City v. Wiener, 838 P.2d 223 (Cal. 1990); Ben's Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003); Daytona Grand, Inc. v. City of Daytona Beach, 490 F.3d 860 (11th Cir. 2007); Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007); H&A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007); Illinois One News, Inc. v. City of Marshall, 477 F.3d 461 (7th Cir. 2007); G.M. Enterprises, Inc. v. Town of St. Joseph, 350 F.3d 631 (7th Cir. 2003); Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008); Deja vu of Nashville, Inc. v. Metropolitan Gov't of Nashville & Davidson County, 466 F.3d 391 (6th Cir. 2006); Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th Cir. 1998); Gammoh v. City of La Habra, 395 F.3d 1114 (9th Cir. 2005); Davis v. Gates, No. 91-56174, 1992 U.S. App. LEXIS 22417 (9th Cir. 1992); People ex rel. Deters v. The Lion's Den, Inc., Case No. 04-CH-26, Modified Permanent Injunction Order (Ill. Fourth Judicial Circuit, Effingham County, July 13, 2005); Reliable Consultants, Inc. v. City of Kennedale, No. 4:05-CV-166-A, Findings of Fact and Conclusions of Law (N.D. Tex. May 26, 2005); 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;

ction Order (Ill. Fourth Judicial Circuit, Effingham County, July 13, 2005); Reliable Consultants, Inc. v. City of Kennedale, No. 4:05-CV-166-A, Findings of Fact and Conclusions of Law (N.D. Tex. May 26, 2005); 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, 1995-98; Chattanooga, Tennessee - 1999-2003; Los Angeles, California - 1977; Whittier, California - 1978; Spokane, Washington - 2001; St. Cloud, Minnesota - 1994; Littleton, Colorado - 2004; Oklahoma City, Oklahoma - 1986; Dallas, Texas - 1997; Ft. Worth, Texas - 2004; Kennedale, Texas - 2005; Greensboro, North Carolina - 2003; Amarillo, Texas - 1977; Jackson County, Missouri - 2008; 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, noise, traffic, 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 (1) 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 division, 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 division are reasonably believed to be relevant to said secondary effects.

The city hereby adopts and incorporates herein its stated findings and legislative record related to the adverse secondary effects of sexually oriented businesses, including the judicial opinions and reports related to such secondary effects.

(Ord. No. 24-03, § 2, 9-17-24)

For purposes of this division, 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.

Adult bookstore or adult video store means a commercial establishment which, as one (1) of its principal business activities, offers for sale or rental for any form of consideration any one (1) 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 "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 (defined as the price charged to customers) 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 portion of its interior business space for the display, sale, and/or rental of said items (aisles and walkways used to access said items shall be included in "interior business space" maintained for the display, sale, or rental of 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 (5) or fewer persons per machine at any one (1) time, and where the images so displayed are characterized by their emphasis upon matter exhibiting "specified sexual activities" or "specified anatomical areas."

Adult motion picture theater means 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 (5) persons for any form of consideration.

Characterized by means describing the essential character or quality of an item. As applied in this division, 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.

City means the City of El Centro, California.

Establish or establishment shall mean and include 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 sexually oriented business; or

(3)

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

Hearing officer means an attorney, not otherwise employed by the city, who is licensed to practice law in California, and retained to serve as an independent tribunal to conduct hearings under this division.

Influential interest means any of the following:

(1)

The actual power to operate the sexually oriented business or control the operation, management or policies of the sexually oriented business or legal entity which operates the sexually oriented business;

(2)

Ownership of a financial interest of thirty (30) percent or more of a business or of any class of voting securities of a business; or

(3)

Holding an office (e.g., president, vice president, secretary, treasurer, managing member, managing director, etc.) in a legal entity which operates the sexually oriented business.

Nudity or a state of nudity means 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.

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 regardless of whether that person is an owner, part owner, or licensee of the business.

Person shall mean individual, proprietorship, partnership, corporation, association, or other legal entity.

Premises means 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.

Regularly means the consistent and repeated doing of an act on an ongoing basis.

Semi-nude or state of semi-nudity means 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.

Semi-nude model studio means 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 class operated:

(1)

By a college, junior college, or university supported entirely or partly 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 seminude person is available for viewing; and

b.

Where, in order to participate in a class a student must enroll at least three (3) days in advance of the class.

Sexual device means any three (3) dimensional object designed for stimulation of the male or female human genitals, anus, buttocks, female breast, or for sadomasochistic use or abuse of oneself or others and shall include devices commonly known as dildos, vibrators, penis pumps, cock rings, anal beads, butt plugs, nipple clamps, 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.

Sexual device shop means a commercial establishment that regularly features sexual devices. This definition shall not be construed to include any pharmacy, drug store, medical clinic, any establishment primarily dedicated to providing medical or healthcare products or services, or any establishment that does not limit access to its premises or a portion of its premises to adults only.

Sexually oriented business means an "adult bookstore or adult video store," an "adult motion picture theater," a "semi-nude model studio," or a "sexual device shop."

Specified anatomical areas means and includes:

(1)

Less than completely and opaquely covered: human genitals, pubic region; buttock; and female breast below a point immediately above the top of the areola; and

(2)

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

Specified sexual activity means any of the following:

(1)

Intercourse, oral copulation, masturbation or sodomy; or

(2)

Excretory functions as a part of or in connection with any of the activities described in (1) above.

Substantial means at least thirty-five (35) percent of the item(s) so modified.

Transfer of ownership or control of a sexually oriented business shall mean any of the following:

(1)

The sale, lease, or sublease of the business;

(2)

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

(3)

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.

Viewing room shall mean the room, booth, or area where a patron of a sexually oriented business would ordinarily be positioned while watching a film, videocassette, digital video disc, or other video reproduction.

(Ord. No. 24-03, § 2, 9-17-24)

(a)

Location standards. It shall be unlawful to establish, operate, or cause to be operated a sexually oriented business in the city:

(1)

In a zone other than a zone in which sexually oriented businesses are a permitted use; or

(2)

Within one thousand (1,000) feet of another sexually oriented business or any church, school, public park, public playground, or residential zone.

(b)

Measurement. Distance, without regard to intervening structures, shall be measured as follows:

(1)

A straight line measured between the closest exterior structural walls of any two (2) sexually oriented businesses.

(2)

A straight line measured from the closest exterior structural wall of the sexually oriented business to the closest property line of a church, school, public park, public playground, or residential zone.

(c)

Nonconforming uses. Notwithstanding anything to the contrary in this Code, any sexually oriented business located within the city on the date this section become effective, which does not conform to this section, shall be terminated within twelve (12) months of the date this provision becomes effective. Provided, however, that a nonconforming sexually oriented business may apply for an extension of the amortization period, based upon a showing of financial hardship. The extension, if granted, shall not exceed one (1) year. An application for a hardship extension shall be made at least sixty (60) days before the conclusion of the original twelve (12) month amortization period.

(d)

Procedure for seeking hardship extension. An application for a hardship extension shall be filed in writing with the city planning and zoning director, and shall include evidence of purchase and improvement costs, income earned and lost, depreciation, and costs of relocation. Within ten (10) days after receiving the application, the director shall schedule a public hearing on the application before the hearing officer, which public hearing shall be conducted within thirty (30) days after the director's receipt of the application. Notice of the time and place of such public hearing shall be sent via U.S. mail to the applicant, and shall be published in a newspaper of general circulation published within the city, at least ten (10) days before the hearing. The notice shall contain the particular location for which the hardship extension is requested. The hearing officer shall issue a written decision within ten (10) days after the public hearing on the application for a hardship extension. A hardship extension shall be approved only if the hearing officer makes all of the following findings:

(1)

The applicant, prior to the effective date of this section, made a substantial investment in the property or structure on or in which the nonconforming sexually oriented business is conducted; and

(2)

Such property or structure cannot be readily converted to another, conforming use; and

(3)

The applicant will be unable to recoup said investment as of the date established for termination of the use; and

(4)

The applicant has made good faith efforts to recoup the investment and to relocate the use to a location in conformance with this section.

(Ord. No. 24-03, § 2, 9-17-24)

This division and each section and provision of said division 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 division, 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 division be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this division.

(Ord. No. 24-03, § 2, 9-17-24)

Secs. 29-248—29-254. - Reserved.