Irwindale Municipal Code Ch. 9.53 Adult Businesses

Sections:

* ;hg;Prior ordinance history: Ord. 404 § 1, 1986.

The intent of this chapter is to regulate adult-oriented businesses which, because of their very nature, are believed to have many 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 the adult-oriented businesses; spread of sexually transmitted diseases; higher crime rates, noise, debris or vandalism in the vicinity of adult-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 adult-oriented businesses. It is neither the intent, nor effect of this section to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent, nor effect of this section to restrict or deny adults access to sexually oriented materials or merchandise protected by the First Amendment, or to deny access by the distributors or exhibitors of adult-oriented business to their intended market.

Nothing in this section is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any city ordinance, any law 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.

(Ord. 597 § 2(part), 2006).

As used in this chapter:

"Adult-oriented business" means any business establishment or concern which, as a regular and substantial course of conduct, performs as an adult bookstore, adult theater, adult motion picture arcade, adult cabaret, stripper, adult model studio, adult motel/hotel; any business establishment or concern which, as a regular and substantial course of conduct, sells or distributes sexually oriented merchandise or sexually oriented material; or any other business establishment or concern which, as a regular and substantial course of conduct, offers to its patrons products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts. "Adult-oriented business" does not include those uses or activities, the regulation of which is preempted by state law. For the purposes of this section, a business establishment or concern has established the provision of products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts as a regular and substantial course of conduct when one or more of the following conditions exist:

1. The area devoted to adult merchandise and/or sexually oriented material exceeds more than fifteen percent of the total display or floor space area open to the public;

2. The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on specified sexual activity or specified anatomical parts;

3. The regular and substantial course of conduct of the business consists of or involves the sale, trade, display or presentation of services, products, or entertainment, which are characterized by an emphasis on matters depicting, describing or relating to specified sexual activity or specified anatomical parts.

"Entertainer," for the purposes of this chapter, means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical parts in an adult-oriented business.

"Individual viewing area" means any area designed for occupancy of one person for the purpose of viewing live performances, pictures, movies, videos or other presentations.

"Sexually oriented" means any use, display, sale, product, book, treatment, manipulation, projection machine or other device, the principal advertised and emphasized purpose, use of, manifestation of, which is for gratification, prurient, education, entertainment, observation, reading, or other stimulus, excitation, or study of human heterosexual, homosexual, or other explicit sexual activity, or stimulation or depiction thereof or any specified sexual activity.

"Sexually oriented material" means any element of sexually oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, or other written, oral or visual representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts.

"Sexually oriented merchandise" means sexually oriented material, or sexually oriented implements and paraphernalia, such as, but not limited to, sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity.

"Specified anatomical parts" means:

1. Less than completely and opaquely covered human genitals; pubic region; buttocks, or female breast 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.

"Specified sexual activities" means:

1. Actual or simulated sexual intercourse including oral copulation and anal intercourse;

2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence, or physical stimulation of unclothed genitals or any act of masturbation;

3. Erotic or lewd touching, fondling or other sexually oriented contact including any touching of the pubic region, buttocks or female breasts;

4. The use of excretory, urinary or menstrual function in the context of a sexual act;

5. The presence of any person who performs, or appears in attire where specified anatomical parts are either not opaquely covered or minimally covered with devices commonly referred to as pasties and G-strings or any other opaque covering, over the nipple and areola of the female breast, and while covering the natal cleft and pubic area covers less than one inch on either side of the entire length of the natal cleft and two inches across the pubic area; or

6. Any act which would constitute "sexually explicit conduct" as defined in Title 18 of the United States Code, Section 2256(2).

(Ord. 597 § 2(part), 2006).

No adult-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 an adult-oriented business permit and a business license from the city.

(Ord. 597 § 2(part), 2006).

A. Application Submittal. The property owner, or authorized agent of the property owner, is eligible to request an adult-oriented business permit. Applications shall be submitted to the planning department.

B. The following is required at the time an adult-oriented business permit is submitted:

1. A completed adult-oriented business permit application signed by the property owner or authorized representative;

2. A nonrefundable deposit or fee as set forth by ordinance or resolution of the city council;

3. A letter of justification and diagram or floor plan describing the proposed project and explaining how it complies or will comply with the requirements contained in Chapters 5.36 and 17.59 of this code;

4. Signed statement by the applicant verifying the applicant intends to and will comply with all operational requirements of Section 9.53.050 of this chapter;

5. Signed statement that the applicant, and/or the applicant's officers, partners or investors have not had an adult-oriented business permit revoked within the previous two years;

6. All other information as required by city of Irwindale adult-oriented business permit information sheet.

C. Determination of Completeness. The planning director shall determine whether the application contains all the information required by the provisions of this chapter. If it is determined that the application is not complete, the applicant shall be notified, in writing within thirty calendar days of the date of receipt of the application, that the application is not complete and the reasons therefore, including any additional information necessary to render the application complete. The applicant shall have thirty calendar days to submit additional information to render the application complete. Failure to do so within the thirty-day period shall render the application void. Within twenty calendar days following the receipt of an amended application or supplemental information, the planning director shall again determine whether the application is complete in accordance with the procedures set forth in this subsection. Evaluation and notification shall occur as provided in this section until such time as the application is found to be complete. The applicant shall be notified within five business days of the date the application is found to be complete. 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.

(Ord. 597 § 2(part), 2006).

A. The planning commission shall issue an adult-oriented business permit within forty-five days of receipt of a complete application unless a longer period is required to comply with the provisions of the California Environmental Quality Act (CEQA) if it finds that the application fully complies with the findings/requirements of this section. If the planning commission has not made a decision within forty-five days of receipt of a complete application, or such longer time period as required to comply with CEQA, the applicant shall be permitted to begin operating the establishment for which a permit is sought, unless and until the planning commission notifies the applicant of a denial of the application and states the reason(s) for the denial. A complete application shall consist of all sections of the written application answered with requested information accompanied by plans showing how the business intends to comply with the requirements of this chapter and applicable requirements of Chapters 5.36 and 17.59 of this code. The decision of the planning commission to issue or deny a permit shall be final unless timely appealed to the city council in accordance with Section 9.53.090(D) of this chapter. The appeal will be governed by Section 9.53.090(D) of this chapter.

B. Findings/Requirements. The planning commission shall approve and issue an adult business permit if the application and evidence demonstrate compliance with the following:

1. The adult-oriented business is located in an approved zoning district in compliance with the zoning, location, and development standards of Chapter 17.59 of this code. The distance limitations contained in Section 17.59.030(B) of this code are inapplicable if an approved residential use, place of worship, educational institution, park, premises selling alcoholic beverages or another adult-oriented business locates or seeks permission to locate within the prescribed distance of a proposed adult-oriented business after the application for the adult-oriented business has been submitted;

2. The adult-oriented business is not located completely or partially within any mobile structure or pushcart;

3. The adult-oriented business shall not stage any special events, promotions, festivals, concerts or similar events which would increase the demand for parking beyond the approved number of spaces for the particular use;

4. The adult-oriented business shall not conduct any massage, acupuncture, tattooing, acupressure, fortune-telling or escort services on the premises;

5. The adult-oriented business provides a security system that visually records and monitors all parking lot areas and all areas accessible to the public. All indoor areas of the adult-oriented business shall be open to public view at all times with the exception of restroom facilities and dressing rooms. "Accessible to the public" shall include, but not be limited to, those areas which are only accessible to members of the public who pay a fee and/or join a private club or organization;

6. The adult-oriented business complies with the city's sign regulations;

7. The adult-oriented business complies with the development and design requirements of the zone in which it is to be located for the specific underlying use;

8. The adult-oriented business shall not display any sexually oriented material or sexually oriented merchandise which would be visible from any location outside the adult-oriented business;

9. The adult-oriented business shall not allow admittance to any person under the age of eighteen if no liquor is served, or under the age of twenty-one if liquor is served;

10. The adult-oriented business shall not operate between the hours of one a.m. and eight a.m. Monday through Saturday, and one a.m. and twelve noon on Sunday;

11. Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, of the adult-oriented business have been found guilty within the past five years of a misdemeanor classified by the state as a sex-related offense or felony and have not violated any of the provisions of an adult-oriented business permit or similar permit or license in any city, county, territory or state;

12. Individual viewing areas shall be operated and maintained without any hole or other opening or means of direct communication or visual or physical access between the interior space of two or more individual viewing areas;

13. No individual viewing area may be occupied by more than one person at any one time;

14. The interior of the adult-oriented business is configured such that there is an unobstructed view of every area accessible to the public, including, but not limited to, the interior of all individual viewing areas, from a manager's station which is no larger than thirty-two square feet of floor area with no single dimension being greater than eight feet in a public portion of the establishment. No public area, including, but not limited to, the interior of any individual viewing area, shall 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 from the manager's station. A manager shall 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 shall be designed or operated to permit occupancy of more than one person at a time. To the extent this provision is inconsistent with any other provision of this code regulating the interior arrangement of adult-oriented businesses, this provision shall control;

15. All areas of the adult-oriented business shall be illuminated at a minimum of two foot-candles, evenly distributed at ground level;

16. No adult-oriented business, new or existing, may maintain closed areas, booths, cubicles, rooms, individual viewing areas or other areas, within its place of business, which could be used, designed or furnished for private sexual activity. No nudity or sexual activities by customers or others shall be allowed on the premises. This section shall become effective immediately with no amortization;

17. The adult-oriented business complies with the noise element of the general plan or any applicable specific plan, interior and exterior noise standards and any mitigation measures necessary to reduce the project's noise impacts to the city's articulated noise standard, including the regulation in Chapter 9.28 of this title;

18. No entertainment, as that term is defined in Section 5.36.020 of this code, shall be permitted without first obtaining a permit pursuant to Chapter 5.36 of this code;

19. No building, premises, structure, or other facility shall be permitted to contain more than one type of adult-oriented business, as such types of adult-oriented business are defined in Section 9.53.020 of this chapter. For the purposes of this section, the catchall phrase "adult-oriented business" shall not be considered a single type of adult-oriented business;

20. Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance/exit to the business. No exterior door or window shall be propped or kept open at any time during hours of operation; any exterior windows shall be covered with opaque covering at all times;

21. The premises shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use;

22. The permittee shall provide an entrance/exit to the premises for entertainers which is separate from the entrance/exit used by patrons;

23. No owner or other person with managerial control over an adult-oriented business shall permit any person on the premises of the adult-oriented business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, and/or the female breasts with less than a fully opaque covering over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered;

24. No operator, entertainer, employee or agent of an adult-oriented business providing live entertainment shall permit to be performed, offer to perform or perform sexual intercourse, oral or anal copulation, fondling or physical stimulation of either clothed or unclothed human genitals, pubic regions, buttocks or female breasts with any patron;

25. No operator, entertainer or employee or agent of an adult-oriented business shall permit any patron to touch, caress, or fondle the clothed or unclothed breast, buttocks, anus or genitals of any operator, entertainer, employee or agent of an adult-oriented business providing live entertainment nor permit any entertainer, operator, employee or agent to touch, caress or fondle the clothed or unclothed breasts, buttocks, anus, or genitals of any patron;

26. All on-stage performances require a stage of at least eighteen inches above the level of the floor, which is separated by a distance of at least six feet from the nearest area occupied by patrons, and no patron shall be permitted within six feet of the stage while the stage is occupied by an entertainer. This subsection shall not apply to individual viewing areas where the stage is completely separated from the viewing area, floor to ceiling, by plexiglass or other clear permanent barrier;

27. As to off-stage performances, no entertainer shall perform live entertainment characterized by the exposure of specified anatomical parts or engaging in specified sexual activities off stage as these terms are defined at Section 9.53.020 of this chapter. As to an adult cabaret dancer or entertainer performing off stage, a distance of at least two feet shall be maintained between the entertainer and patron(s) at all times. As to off-stage performances, no entertainer shall have physical contact with any patron and no patron shall have physical contact with any adult cabaret dancer while the adult cabaret dancer is performing on the premises. This prohibition does not extend to incidental touching;

28. While on the premises, no entertainer or adult cabaret dancer shall have physical contact with a patron and no patron shall have physical contact with an entertainer or adult cabaret dancer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks, perineum, anal region, or female breast with any part or area of any other person's body either before, after, or during any entertainment by such entertainer or adult cabaret dancer. Patrons shall be advised of the no-touching requirements by signs and, if necessary, by owners, employees, entertainers or adult cabaret dancers of the establishment;

29. No patron, guest or invitee shall directly pay or give any gratuity to any entertainer and no entertainer shall accept direct payment or gratuity from any patron;

30. The place of entertainment will provide separate restroom facilities for male and female patrons. The restrooms will be free from sexually oriented merchandise or sexually oriented material as those terms are defined in Section 9.53.020 of this chapter;

31. Every operator, manager, authorized agent, or employee of an adult-oriented business shall permit the police to inspect the business activities at any time to assure compliance with these regulations;

32. No patron, guest or invitee shall be permitted to photograph, video, or otherwise record sounds or images without the express written consent of every individual recorded.

(Ord. 597 § 2(part), 2006).

An adult-oriented business permit shall be valid for a period of one year from the date of issuance.

(Ord. 597 § 2(part), 2006).

An adult-oriented business permit shall be renewed on a yearly basis, provided that the permittee and the adult-oriented business continue to meet the requirements set forth in this chapter.

A request for permit renewal must be accompanied by a completed adult-oriented business permit application. If such application conforms to the previously approved application and the adult-oriented business has not changed, the permit shall be renewed by the planning director for another year.

Any change or alteration in that nature or operation of the adult-oriented business will require the renewal to be reviewed by the planning commission at a public hearing. The renewal fee for an adult-oriented business permit shall be established by ordinance or resolution of the city council.

(Ord. 597 § 2(part), 2006).

No adult-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 the permit and the permit shall be thereafter null and void. An adult-oriented business permit held by a corporation or partnership is subject to the same rules of transferability as contained in this section. Any change in the nature or composition of the adult-oriented business from one element of an adult-oriented business to another element of an adult-oriented business or any increase of ten percent or more of the floor area of the adult-oriented business shall also render the permit null and void. An adult-oriented business permit shall only be valid for the exact location specified on the permit. No off-site presentations of entertainment as defined in Section 5.36.020 of this code shall be permitted.

(Ord. 597 § 2(part), 2006).

A. Inspections. The permittee shall permit officers of the city, the county of Los Angeles, and each of their authorized representatives to conduct unscheduled inspections of the premises of the adult-oriented business for the purpose of ensuring compliance with the law at any time the adult-oriented business is open for business or occupied.

B. Revocation Grounds. The planning commission may revoke an adult-oriented business permit when he or she discovers that any of the following have occurred:

1. A violation of or failure to comply with any of the requirements contained in this chapter, or Chapter 17.59 of this code, has occurred;

2. It is discovered that the application contains incorrect, false or misleading information, or it is discovered that the applicant provided incorrect, false, or misleading information to an officer of the city or county;

3. The applicant or permittee is convicted of any felony or misdemeanor which is classified as a sex or sex-related offense, or has been found to be in violation of the city's zoning ordinance, any violation of the city's massage ordinance, or any violation of any other applicable adult-oriented business ordinance of the city, county or state;

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

5. There has occurred on the premises a violation of any provision of Chapter 5.36 of this code.

C. Revocation Notice. Upon determining that the grounds for permit revocation exist, the planning director 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 may appeal the decision within fifteen calendar days of the posting or the postmarked date on the notice. The notice shall be delivered both by posting the notice at the location of the adult-oriented business and by sending the same, certified mail, return receipt requested and postage prepaid, to the permittee as that name and address appears on the permit. Not later than fifteen calendar days after the latter of the mailing or posting of the notice, the permittee may file an appeal of the planning director's determination with the city clerk. If the appeal is filed within fifteen calendar days of the mailing or posting of the notice referenced in this subsection, the appeal hearing shall be provided as contained in subsection D of this section.

D. Appeal. Any person aggrieved by a decision to revoke a permit under this chapter may file an appeal with the city clerk within fifteen calendar days of the decision. The request for the appeal shall state the grounds upon which the appeal is based. Upon receipt, the city clerk shall schedule an appeal hearing before the city council or an appointed hearing officer and shall provide written notice of the time, date and location of the hearing to the applicant. The hearing shall be held no later than forty-five days from the date the request for the appeal is received by the city clerk. The city council shall determine whether grounds for revocation of the adult-oriented business permit exists and shall render its decision at the conclusion of the hearing or upon recommendation of the hearing, unless the applicant otherwise consents to a continuance. A written decision will be issued within twenty business days. In the event a determination is made to revoke the permit, an order of revocation will be issued with the written decision.

E. Reapplication After Revocation. No person, corporation, partnership or member thereof or any other entity may obtain an adult-oriented business permit for two years from the date the order of revocation has been implemented.

(Ord. 597 § 2(part), 2006).

Any establishment operated, conducted or maintained contrary to the provisions of this chapter is unlawful and a public nuisance, and may be abated pursuant to Section 1.12.040 of this code, and further constitutes a misdemeanor subject to the provisions of Section 1.12.010 of this code.

(Ord. 597 § 2(part), 2006).

In the event any prohibition set forth in this chapter is held by any court of jurisdiction to be invalid or unenforceable, then such prohibition shall be severed from this chapter, the remainder of which will remain in full force and effect.

(Ord. 597 § 2(part), 2006).