Irvine Municipal Code Ch. 2-28 Sexually Oriented Business Permit

A. The intent of this chapter is to regulate uses which, because of their very nature, are believed to have any of the recognized significant secondary effects on the community, which include, but are not limited to: depreciated property values and increased vacancies in residential and commercial areas in the vicinity of sexually oriented businesses; interference with residential property owners' enjoyment of their property when such property is located in the vicinity of sexually oriented businesses due to increased crime, debris, noise and vandalism; higher crime rates in the vicinity of sexually oriented businesses; and blighting conditions such as low-level maintenance of commercial premises and parking lots which thereby have a deleterious effect upon adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the neighborhoods in the vicinity of the sexually oriented businesses. It is neither the intent nor effect of this chapter to impose limitations or restrictions on the content of any communicative material. Similarly it is neither the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors or exhibitors of sexually oriented materials to their intended market.

B. Nothing in this chapter is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof.

C. Review and approval of the sexually oriented business permit is a ministerial action based on the standards contained in this zoning ordinance, and is therefore not subject to CEQA.

(Code 1976, § V.E-220.1; Ord. No. 92-22, § 3, 12-8-92; Ord. No. 94-7, § 3, 6-14-94)

No sexually oriented business shall be permitted to operate, engage in, conduct or carry on business within the City unless the owner of the business first obtains both a sexually oriented business permit and a business license from the City of Irvine.

(Code 1976, § V.E-220.2; Ord. No. 92-22, § 3, 12-8-92; Ord. No. 94-7, § 3, 6-14-94)

A complete sexually oriented business permit application signed by the property owner or its authorized representative and by the owner of the proposed sexually oriented business.

(Code 1976, § V.E-220.3; Ord. No. 92-22, § 3, 12-8-92; Ord. No. 94-7, § 3, 6-14-94; Ord. No. 99-04, § 1, 2-9-99; Ord. No. 23-13, § 3(Exh. A), 7-11-23)

A. Determination of completeness. The City Manager or his or her designee shall notify the City Council of the receipt of an adult oriented business application and, within seven days of receipt of an application, determine whether the application contains all the information required by the provisions of this Chapter 2-28. If it is determined that the application is not complete, the applicant shall be notified in writing within 10 business days of the date of receipt of the application that the application is not complete and the reasons therefor, including any additional information necessary to render the application complete. The applicant shall have 30 calendar days to submit additional information to render the application complete. Failure to do so within the 30-day period shall render the application null and void. Within five business days following the receipt of an amended application or supplemental information, the City Manager or his or her designee shall again determine whether the application is complete in accordance with the procedures set forth above. Evaluation and notification shall occur as provided above until such time as the application is found to be complete. Once the application is found to be complete, the applicant shall be notified within five business days of that fact. All notices required by this chapter shall be deemed given upon the date they are either deposited in the United States mail, or the date upon which personal service of such notice is provided.

B. Issuance of permit. The City Manager shall issue a sexually oriented business permit within 15 calendar days of receipt of a completed application if he or she finds that the application fully complies with the findings/locational and operational requirements contained in Section 2-28-5. The applicant shall be notified within five business days of the date the City Manager issues the sexually oriented business permit in the manner provided above. The decision of the City Manager to issue or deny a permit shall be final.

C. Prompt judicial review. Any applicant whose permit has been denied pursuant to this chapter shall be afforded prompt judicial review of that decision as provided by law. Notwithstanding the provisions of Code of Civil Procedure § 1094.6, or any other provision of law, in the event that a complete record of the proceedings is necessary for the judicial review of the decision, the City shall provide the record to the person seeking judicial review and the court within 14 days of receiving a request to do so.

(Code 1976, § V.E-220.4; Ord. No. 92-22, § 3, 12-8-92; Ord. No. 94-7, § 3, 6-14-94; Ord. No. 99-04, § 2, 2-9-99)

The City Manager shall approve and issue a sexually oriented business permit if the City Manager finds that:

A. The sexually oriented business is located in the General Industrial or IBC Industrial zones.

B. The sexually oriented business is not proposed to be located within 2,300 feet of any residential zone or residential use approved by the Cities of Irvine, Lake Forest, Laguna Hills, and Tustin, or the United States Marine Corps.

C. The sexually oriented business is not proposed to be located within 2,300 feet of any lot upon which there is located a religious institution, public park facility, child care center or school.

D. Reserved.

E. The sexually oriented business is not proposed to be located within 500 feet of another sexually oriented business.

F. The distance of separation required by findings B, C, and E shall be made using a straight line, without regard to intervening structures or objects, from the property line of the lot on which the sexually oriented business shall be located to the nearest property line of the lot upon which is located a residential use, a religious institution, the Irvine Multi-Modal Transportation Center, the James Musick Facility, a public park facility, a school, a child care center or a sexually oriented business. If the use to which the measurement is being taken is located on the same lot as the sexually oriented business, the distance between the two shall be measured in a straight line between the front doors of each use without regard to intervening structures or objects.

G. The sexually oriented business complies with the City's parking standards for the underlying use. Where no City parking standard exists for a particular use, a parking study shall be prepared and completed for the use in question. The study shall demonstrate that the sexually oriented business for which the applicant is seeking approval provides parking sufficient to satisfy the demand demonstrated by the parking study.

H. The sexually oriented business is not proposed to be located completely, or partially, within any mobile structure or pushcart.

I. The sexually oriented business will not stage any special events, promotions, festivals, concerts or the like that would increase the demand for parking beyond the approved number of spaces for the particular use.

J. The sexually oriented business will not conduct any massage, acupuncture, tattooing, acupressure, fortune telling or escort services on the premises.

K. The sexually oriented business provides a security system that visually records and monitors parking lot areas.

L. The sexually oriented business complies with the City's sign regulations as contained in Division 7 of the zoning ordinance.

M. The sexually oriented business complies with the development and design requirements of the planning area in which it is to be located.

N. The sexually oriented business will not display any sexually oriented material or sexually oriented merchandise which would be visible from any location other than from within the sexually oriented business.

O. The sexually oriented business will not be accessible to any person under the age of 18 if no liquor is served, or 21 if liquor is served.

P. The sexually oriented business shall not operate between the hours of 10:00 p.m. and 7:00 a.m.

Q. Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, of the sexually oriented business shall have been found guilty within the past two years of violating any of the provisions of a sexually oriented business permit or similar permit or license in any city, county, territory or state, or of any misdemeanor or felony classified by the state as a sex related offence, including, but not limited to, a violation of the following Penal Code sections and their subparts and subsections: 220, 261, 262, 264, 264.1, 265, 266 (inc. 266a—266k), 267, 286, 286.5, 288, 288a, 289, 647, 647b, 647d, and 647.6.

R. Reserved.

S. The interior of the adult oriented business will be configured such that there is an unobstructed view, by use of the naked eye, and unaided by video, closed circuit cameras or any other means, of every public area of the premises, including, but not limited to, the interior of all individual viewing areas, from a manager's station which is no larger than 32 square feet of floor area with no single dimension being greater than eight feet and located in a public portion of the establishment. No public area, including, but not limited to, the interior of any individual viewing area, will be obscured by any door, curtain, wall, two-way mirror, or other device which would prohibit a person from seeing into the interior of the individual viewing area, solely with the use of the naked eye and unaided by video, closed circuit cameras or any other means, from the manager's station. A manager will be stationed in the manager's station at all times the business is in operation or open to the public in order to enforce all rules and regulations. No individual viewing area will be designated or operated to permit occupancy of more than one person at any one time.

T. All areas of the sexually oriented business shall be illuminated at a minimum of 1.25 footcandles, minimally maintained and evenly distributed at ground level.

U. The individual viewing areas of the sexually oriented business shall be operated and maintained with no holes or other openings or means of direct visual or physical access between the interior space of two or more individual viewing areas. "Individual viewing area" shall mean a viewing area designed for occupancy by one person.

V. The sexually oriented business complies with the objective design and development requirements for the zone in which the use will occur.

W. A traffic study has been prepared for the sexually oriented business in conformance with the City of Irvine traffic study guidelines. The applicant shall make all necessary improvements to reduce all project-related traffic impacts which exceed the applicable planning area's adopted trip cap or IBC development intensity value cap or any street, roadway or arterial's adopted level of service are reduced to the adopted levels. Said improvements have been made conditions of project approval.

X. The sexually oriented business shall comply with the noise element of the General Plan, including Figure F-5, interior and exterior noise standards, and any mitigation measures necessary to reduce the project's noise impacts to the City's articulated noise standard.

Y. Reserved.

Z. The sexually oriented business will provide separate restroom facilities for male and female patrons. The restroom will be free from sexually oriented materials and sexually oriented merchandise. Only one person will be allowed in the restroom at any time, unless otherwise required by law, in which case the sexually oriented business will employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant will ensure that no person of the opposite sex is permitted into the restroom, and that not more than one person is permitted to enter a restroom stall, and, with the exception of urination and excretion, which no persons engage in any specified sexual activity in the public portion of the restroom.

AA. Live entertainment will only be performed either: (a) on a stage raised at least 18 inches above the floor and separated from patrons by a fixed rail at least 30 inches in height placed at a distance of not less than eight feet around the perimeter of the stage; or (b) in a location other than on a stage such that no portion of the performer is, at any time, within six feet of any patron. This provision will not apply to an individual viewing area where the performer is completely separated from the area in which the performer is viewed by an individual by a permanent, floor to ceiling solid barrier.

AB. No patron will directly pay or give any gratuity to any performer, and no performer will accept any direct payment from any patron. For the purposes of this section, the phrase "directly pay" shall mean the person to person transfer of the gratuity. This section shall not prohibit the establishment of a nonhuman gratuity receptacle placed at least six feet from the stage or area occupied by the performer.

AC. No performer will intentionally have any physical contact with any patron and no patron will intentionally have any physical contact with any performer while on the premises of an adult oriented business.

AD. At least one security guard will be on duty outside the premises, patrolling the grounds at all times the business is open to the public. The security guard shall be charged with permitting violations of law and enforcing the provisions of this chapter. All security guards will be uniformed so as to be readily identifiable as a security guard by the public. No person acting as a security guard shall act as a doorman, ticket taker or seller, or perform any other function while acting as a security guard. For all sexually oriented businesses providing live entertainment, an additional security guard will be required with each increase in maximum occupancy of 50 persons. All security guards shall be licensed under the California State Private Security Services Act, Business and Professions Code § 7580 et seq.

AE. Public nudity will be prohibited on the premises at all times. For the purposes of this section, the term "public nudity" shall mean appearing in a state in which the individual is clothed in less than pasties and a G-string. The phrase "G-string" shall mean an article of clothing that opaquely covers the buttocks at least one inch on either side of the natal cleft and covers the entirety of the genitalia and pubis. The term "pasties" shall mean an article of clothing that opaquely covers the nipple and areola of the female breast and is not designed to nor appears to look like the nipple and/or areola of the female breast.

(Code 1976, § V.E-220.5; Ord. No. 92-22, § 3, 12-8-92; Ord. No. 94-7, § 3, 6-14-94; Ord. No. 99-04, §§ 3—14, 2-9-99; Ord. No. 00-02, § 4, 2-8-00; Ord. No. 10-07, § 9 (Exh. H), 7-27-10; Ord. No. 23-13, § 3(Exh. A), 7-11-23)

Editor's note— Ord. No. 99-04, §§ 15 and 16, adopted February 9, 1999, amended the Code by repealing former §§ 2-28-7 and 2-28-8. Former § 2-28-7 pertained to permit duration, and derived from the Code of 1976, § V.E-220.6; and Ord. No. 92-22, adopted December 8, 1992; Ord. No. 94-7, adopted June 14, 1994. Former § 2-28-8 pertained to permit renewal and derived from the Code of 1976, § V.E-220.7; and Ord. No. 92-22, adopted December 8, 1992; Ord. No. 94-7, adopted June 14, 1994.

No sexually oriented business permit may be sold, transferred, or assigned by any permittee, or by operation of law, to any other person, group, partnership, corporation or any other entity. Any such sale, transfer, or assignment or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of such permit and such permit shall be thereafter null and void. A sexually oriented business permit held by an individual in a corporation or partnership is subject to the same rules of transferability as contained above. Any change in the nature or composition of the sexually oriented business from one element of a sexually oriented business use to another element of a sexually oriented business shall also render the permit null and void. A sexually oriented business permit shall only be valid for the exact location specified on the permit.

(Code 1976, § V.E-220.8; Ord. No. 92-22, § 3, 12-8-92; Ord. No. 94-7, § 3, 6-14-94)

A. Inspections. The permittee shall permit officers of the City of Irvine, the County of Orange, and each of their authorized representatives to conduct unscheduled inspections of the premises of the sexually oriented business for the purpose of ensuring compliance with the law at any time the sexually oriented business is open for business or occupied.

B. Revocation grounds. The Director of Community Development may revoke a sexually oriented business permit when he or she discovers that any of the following have occurred:

1. Any of the findings contained in Section 2-28-5 above ceases to be satisfied;

2. The application contains incorrect, false or misleading information;

3. The applicant is convicted of any felony or misdemeanor which is classified as a sex or sex-related offense, any violation of the City's zoning ordinance, any violation of the City's massage ordinance, or any violation of any other adult business ordinance of any other city, county, or state;

4. Individual viewing areas are being operated with more than one occupant at any one time, or are being maintained with holes or other openings or means of direct visual access between the interior space of two or more individual viewing areas. For the purpose of this chapter, "individual viewing area" shall mean a viewing area designed for single occupancy; or

5. Any person has been convicted of a sex-related offense as a result of his or her activity on the premises of the sexually oriented business.

C. Revocation notice. Upon determining that the grounds for permit revocation exist, the Director of Community Development shall furnish written notice of the proposed revocation to the permittee. Such notice shall summarize the principal reasons for the proposed revocation, shall state that the permittee must request a public hearing within 15 calendar days of the postmarked date on the notice, and shall be delivered both by posting the notice at the location of the sexually oriented business and by sending the same, certified mail, return receipt requested and postage prepaid, addressed to the permittee as that name and address appears on the permit. Within 15 calendar days after the latter of the mailing or posting of the notice, the permittee may file a request for public hearing with the City Clerk. If the request for a public hearing is filed within 15 calendar days of the mailing or posting of the notice referenced above, the hearing shall be provided as contained in Subsection D below.

D. Revocation hearing. Upon receipt of a written request for a public hearing, the Director of Community Development shall appoint a hearing officer, who shall conduct a hearing within 30 calendar days of receipt of such request. Notice of the public hearing shall be in accordance with Chapter 2-23 of this zoning ordinance. Notice of the time and place of the hearing shall be sent to the permittee via certified mail, return receipt requested and postage prepaid, at least 15 calendar days in advance of the date set for the public hearing. At the public hearing, the permittee and the City shall be entitled to present relevant evidence, testify under oath, and call witnesses who shall testify under oath. The public hearing officer shall not be bound by the traditional rules of evidence in the hearing, except that hearsay evidence may not be the sole basis for the determination of the hearing officer.

E. Ruling. Within 10 calendar days of the termination of the hearing, the hearing officer shall make a decision on whether the grounds for revocation exist and shall submit a written report to the Director of Community Development. Such written report shall contain a brief summary of the evidence considered and shall state findings, conclusions and directives to the Director on whether the permit is to be revoked. All such reports shall be filed with the City Clerk, and shall be considered public records. A copy of such report shall be forwarded by certified mail, return receipt requested and postage prepaid, to the permittee on the day it is filed with the City Clerk. If the hearing officer determines that any grounds for revocation exist, as provided in Subsection B above, the Director of Community Development, based upon the report of the hearing officer, or if no hearing is conducted, based upon the report of the City staff, shall immediately revoke the permittee's sexually oriented business permit. The decision of the hearing officer shall be final.

F. Maintenance of status quo. The status quo shall be maintained pending conclusion of the revocation hearing. If a judicial action is commenced challenging the revocation, the status quo shall be maintained until such time as a judicial decision is rendered from the court in which the action is filed.

(Code 1976, § V.E-220.9; Ord. No. 92-22, § 3, 12-8-92; Ord. No. 94-7, § 3, 6-14-94; Ord. No. 99-04, § 17, 2-9-99)

A. Every person, whether acting as an individual owner, employee of the owner, permittee, or operator or employee of the permittee, or whether acting as a mere helper for the owner, permittee, employer, or operator, or whether acting as a participant or worker in any way, who operates or conducts an activity referred to in this chapter without first obtaining a sexually oriented business permit from the City, or who violates any provisions of this chapter, shall be guilty of a misdemeanor.

B. Any establishment operated, conducted or maintained contrary to the provisions of this chapter is unlawful and a public nuisance; and the City Attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such sexually oriented business and restrain and enjoin any person from operation, conducting or maintaining such an establishment contrary to the provisions of this chapter.

(Code 1976, § V.E-220.10; Ord. No. 92-22, § 3, 12-8-92; Ord. No. 94-7, § 3, 6-14-94)