Elk Grove Municipal Code Art. II Definitions

The definitions contained in this section shall govern the construction of this chapter.

A.

“Adult arcade”

means any commercial establishment to which the public is permitted or invited wherein coin-operated, slug-operated, or for any form of consideration, electronically, electrically, or mechanically controlled still or motion picture machines, projectors, video or laser disc players, computer, or other image-producing devices are maintained to show images to four (4) or fewer persons per machine at any one (1) time, and where, as a regular and substantial course of conduct, the images so displayed are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas. The phrase “regular and substantial course of conduct” shall be construed with reference to all relevant factors, including but not limited to the following:

The proportion of the business’ displays that is distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

The proportion of the business’ revenue that is attributable to displays that are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

B.

“Adult bookstore” (including adult novelty store or adult video store)

means a commercial establishment which, as a regular and substantial course of conduct, 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 or video reproductions, any material in digital format (including, but not limited to, compact disc (CD) or digital video disc (DVD)), slides, or other visual representations which are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas; or

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

The phrase “regular and substantial course of conduct” shall be construed with reference to all relevant factors, including but not limited to the following:

a.

The business devotes more than twenty-five (25%) percent of its retail inventory (not measured by the number of items but rather by the cost to the business owner of the inventory) to merchandise distinguished or characterized by an emphasis upon specified sexual activities or specified anatomical areas.

b.

The business devotes more than twenty-five (25%) percent of the retail floor area to merchandise that is distinguished or characterized by an emphasis upon specified sexual activities or specified anatomical areas.

c.

The retail value of merchandise that is distinguished or characterized by an emphasis upon specified sexual activities or specified anatomical areas exceeds twenty-five (25%) percent of the total retail value of inventory offered in each of the following categories:

i.

Books,

ii.

Magazines,

iii.

Video tapes or any material in digital format (including, but not limited to, compact disc (CD) or digital video disc (DVD)), for sale or rental,

iv.

Novelties and devices, and

v.

On-premises viewing of images, films, and/or videos.

d.

Gross revenue derived from merchandise in any category set forth in subsection (B)(3)(c) of this section exceeds twenty-five (25%) percent of the total gross revenue for the category.

C.

“Adult cabaret”

means a nightclub, bar, restaurant, or similar commercial establishment which, as a regular and substantial course of conduct, features:

Persons who appear in a state of nudity or semi-nude condition; or

Live performances which are distinguished or characterized by an emphasis upon the exposure of specified anatomical areas or by specified sexual activities; or

Films, motion pictures, video cassettes, any material in digital format (including, but not limited to, compact disc (CD) or digital video disc (DVD)), slides or other photographic reproductions which are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

The phrase “regular and substantial course of conduct” shall be construed with reference to all relevant factors, including but not limited to the following:

a.

The proportion of the business’ performances or services that is distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

b.

The proportion of the business’ revenue that is attributable to performances or services that are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

D.

“Adult motels” (including adult hotels)

means a hotel, motel or similar commercial establishment which offers accommodations to the public for any form of consideration; provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, any materials in digital format (including, but not limited to, compact disc (CD) or digital video disk (DVD)), slides, or other photographic reproductions which, as a regular and substantial course of conduct, are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas; and has any of the following characteristics:

A sign visible from the public right-of-way which advertises the availability of the abovedescribed photographic reproductions; or

Offers a sleeping room for rent for a period of time that is less than ten (10) hours; or

Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours.

E.

“Adult motion picture theater”

means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, any materials in digital format (including, but not limited to, compact disc (CD) or digital video disk (DVD)), slides, or similar photographic reproductions are regularly shown which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas, for observation by five (5) or more patrons at any one (1) time.

The phrase “regularly shown” shall be construed with reference to all relevant factors, including but not limited to the following:

The proportion of the theater’s photographic reproductions that is distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

The number of photographic reproductions shown at the theater each month that are distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

The proportion of the business’ revenue that is attributable to entertainment that is distinguished or characterized by an emphasis upon the display or depiction of specified sexual activities or specified anatomical areas.

F.

“Adult-oriented business”

means any of the following commercial establishments where patrons are permitted or invited: an adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, nude model studio, or sexual encounter center. An adult-oriented business does not include those businesses defined and regulated as “adult-related businesses” under EGMC Chapter 4.30.

G.

“Adult theater”

means a theater, concert hall, auditorium, or similar commercial establishment which as a regular and substantial course of conduct features persons who appear in a state of nudity or semi-nude condition and/or features live performances which are distinguished or characterized by an emphasis upon the exposure of specified anatomical areas or by specified sexual activities.

The phrase “regular and substantial course of conduct” shall be construed with reference to all relevant factors, including but not limited to the following:

The proportion of the business’ performances or services that is distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

The proportion of the business’ revenue that is attributable to entertainment that is distinguished or characterized by an emphasis upon the depiction, description, showing, or simulation of specified sexual activities or specified anatomical areas.

H.

“Distinguished or characterized by an emphasis upon”

means the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films “which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas,” the films so described are those whose dominant or predominant character and theme are the depiction, description, showing, or simulation of the enumerated sexual activities or anatomical areas.

I.

“Employee”

means a person who performs any service on the premises of an adult-oriented business on a full-time, part-time or contract basis, whether or not the person is denominated an employee, independent contractor, agent or otherwise and whether or not such person is paid a salary, wage or other compensation by the operator of the business. “Employee” does not include a person exclusively on the premises of the adult-oriented business to render only repair or maintenance services or to deliver equipment or goods to the adult-oriented business as long as such persons are not in a state of nudity or in a semi-nude condition.

J.

“Establishment of an adult-oriented business”

means and includes any of the following:

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

The conversion of an existing business, whether or not an adult-oriented business, to any other adult-oriented business;

The addition of any adult-oriented business to any other existing adult-oriented business; or

The relocation of any adult-oriented business.

K.

“Fabric”

means cloth made by weaving or knitting natural or synthetic fibers and filaments and, for the purposes of this definition, includes paper, metallic or plastic materials but excludes any material directly painted on a body.

L.

“Hotel”

means a building or group of buildings containing guestrooms offering transient lodging accommodations to the general public and incidental services that are customarily provided by a hotel, for the convenience of hotel guests, such as food service, recreational facilities, retail services, and banquet, reception and meeting rooms.

M.

“Licensee”

means a person in whose name a license to operate an adult-oriented business has been issued, as well as the person listed as an applicant on the application for a license.

N.

“Motel”

means an establishment otherwise defined as a hotel with at least twenty-five (25%) percent of all rooms having direct access to the parking areas without the necessity of persons passing through a main lobby of the building.

O.

“Nude model studio”

means any place where a person appears semi-nude, in a state of nudity, or displays specified anatomical areas; and is provided to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons who pay money or any form of consideration. “Nude model studio” shall not include a proprietary school licensed by the State of California or a college, junior college or university supported entirely or in part by public taxation; 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 in a structure:

That has no sign visible from the exterior of the structure and no other advertising that indicates a person in a state of nudity or a semi-nude condition is available for viewing;

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

Where no more than one (1) nude or semi-nude model is on the premises at any one (1) time.

P.

“Nudity” or “a state of nudity”

means the showing of the human male or female genitals, pubic area, anus, or buttocks with less than a fully opaque fabric covering, the showing of the female breast with less than a fully opaque fabric covering of any part of the areola, or the showing of completely or opaquely covered (by fabric) male genitals in a discernibly turgid state.

Q.

“Permit”

means an authorization issued by the City to a person in whose name a permit has been issued allowing employment in an adult-oriented business.

R.

“Person”

means an individual, proprietorship, partnership, corporation, association, or other legal entity.

S.

“Chief of Police”

means the Chief of Police of the City of Elk Grove or the authorized representatives thereof.

T.

“Semi-nude” or “in a semi-nude condition”

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

U.

“Sexual encounter center”

means a business or commercial enterprise that, as one (1) of its principal purposes, offers for any form of consideration physical contact in the form of wrestling or tumbling between persons of the opposite sex, when one (1) or more of the persons is in a state of nudity or semi-nude condition. The definition of sexual encounter center does not include an establishment where a medical practitioner, physiologist, psychiatrist, or similar professional person licensed by the State engages in medically approved and recognized sexual therapy.

V.

“Specified anatomical areas”

means and includes the following:

Less than completely and opaquely covered by fabric: human genitals or pubic region; human buttocks; human anus; or the female breast below a point immediately above the top of the areola;

Human male genitals in a discernibly turgid state, even if completely or opaquely covered by fabric; and

Any device, costume, or covering that simulates any of the body parts included in subsection (V)(1) or (2) of this section.

W.

“Specified criminal activity”

means the following offenses within the State of California, or an offense without the State of California that would have constituted any of the following offenses if committed within the State of California: Sections 243.4, 261, 266a, 266b, 266d, 266e, 266f, 266g, 266h, 2661, 266j, 267, 288, 314.1, 314.2, 315, 316, 318, 653.22 or subdivisions (a), (b) and (d) of Section 647 of the California Penal Code; any offense requiring registration under the provisions of either Section 290 of the California Penal Code or Section 11590 of the California Health and Safety Code; or any felony offense involving the possession, possession for sale, sale, transportation, furnishing, or giving away of a controlled substance specified in Section 11054, 11055, 11056, 11057 or 11058 of the California Health and Safety Code, or as those sections may thereafter be amended or renumbered.

X.

“Specified sexual activities”

means and includes any of the following, whether performed directly or indirectly through clothing or other covering:

The fondling or other erotic touching of human genitals, pubic area, buttocks, anus, or female breast;

Sex acts, actual or simulated, including, but not limited to, intercourse, oral copulation, or sodomy;

Masturbation, actual or simulated;

Excretory functions as part of or in connection with any of the other activities described in subsections (X)(1) and (2) of this section.

Y.

“Transfer of ownership or control of an adult-oriented business”

means and includes any of the following:

The sale, lease, or sublease of the adult-oriented business;

The transfer of securities which constitute a controlling interest in the adult-oriented business, whether by sale, exchange, or similar means; or

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

(Ord. 41-2005 § 3, eff. 1-14-2006; Ord. 7-2009 § 3, eff. 5-1-2009)