Los Alamitos Municipal Code Ch. 5.40 Adult-Oriented Business Licenses

It is the purpose of this chapter to regulate adult-oriented 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-oriented 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-oriented 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-oriented 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 Los Alamitos (2003) (collectively "studies"). The studies, a summary of which is found in Exhibit "A" and is available at the city clerk's office, substantiate the adverse, secondary effects of adult-oriented businesses.

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

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

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

3. Unregulated adult-oriented 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-oriented 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-oriented 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-oriented 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-oriented 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 adopts each of the regulations contained in this chapter as a means to reasonably address the adverse secondary effects of adult-oriented businesses.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

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

"Adult-oriented business"

means:

A.

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-oriented 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-oriented 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-oriented business shall not be considered except where such activities, taken together, constitute a regular and substantial course of conduct;

B.

Includes, but is not limited to, the following:

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.

Adult bookstore, novelty store, video/DVD store.

"Adult bookstore, novelty store, video/DVD store" means 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:

a.

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;

b.

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

c.

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.

Adult cabaret.

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

Adult motel.

"Adult motel" means a hotel, motel or similar commercial establishment which:

a.

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

b.

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

c.

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

Adult motion picture theater.

"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.

Adult tanning salon.

"Adult tanning salon" or "parlor" means 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.

Adult theater.

"Adult theater" means 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.

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.

Nude model studio.

"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.

Sex supermarket/sex mini-mall.

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

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:

a.

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

b.

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.

Sexually Oriented Business.

"Sexually oriented business" means 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.

"Appeal."

Wherever the reference to an appeal being filed or available to be filed, such right of appeal also means and includes the right to appeal administrative determinations made by the city manager/designee in accordance with the procedures established in this chapter and Chapters 5.42 and 5.44.

"Couch dance" or "couch dancing"

means an employee of an adult-oriented business intentionally touching any patron while engaged in the display or exposure of any specified anatomical area or while simulating any specified sexual activity.

"Establishment"

means and includes any of the following:

A.

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

B.

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

C.

The addition of any adult-oriented business to any other existing adult-oriented business, with or without expansion of floor area;

D.

The relocation of any adult-oriented business; or

E.

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

"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.

"Person"

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

"Private viewing area"

means an area or areas in an adult-oriented business designed to accommodate no more than five 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.

"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.

"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.

"Specific criminal act"

also means "specified criminal acts" and includes sexual crimes against children; sexual abuse; rape; or crimes connected with another adult-oriented 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.

"Specified anatomical areas"

means and includes any of the following human anatomical areas:

A.

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

B.

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

"Specified sexual activities"

means and includes all of the following:

A.

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

B.

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

C.

Human masturbation, actual or simulated;

D.

The actual or simulated infliction of pain by one human upon another, or by an individual upon him 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;

E.

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

F.

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

"Straddle dance" or "straddle dancing"

shall have the same meaning as "couch dance" or "couch dancing" as defined in this section.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

A. A person commits a misdemeanor, subject to punishment in accordance with Section 1.20.010 et seq., of this code, if he or she operates an adult-oriented business within the city without a valid adult-oriented business license issued by the city for the particular type of business.

B. An application for a license must be made on a form provided by the city. The application must be accompanied by a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises. The application shall include at a minimum the street address of the principal place of business where business records are kept and any location, current or proposed, for the adult-oriented business in the city. Post office boxes or postal annex addresses shall not be sufficient to meet this requirement. Notwithstanding the fact that an application filed hereunder may be a "public record" under Government Code Section 6250 et seq., certain portions of such application contain information vital to the effective administration and enforcement of the licensing and/or permit scheme established in this chapter which information is personal, private, confidential or the disclosure of which could expose the applicant to a risk of harm. Such information includes, but is not limited to, the applicant's residence address and telephone number, the applicant's date of birth and/or age, the applicant's driver's license and/or social security number, and/or personal financial data. The city council, in adopting the application and licensing and/or permit system set forth in this chapter, has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentiality or security interests are protected. The city clerk shall cause to be obliterated from any copy of a license application made available to any member of the public the information set forth above.

C. An adult use planning permit application must also be concurrently filed with the license application. The license application shall contain the same information required of the adult use planning permit. The adult use planning permit application will be processed in accordance with the time limits of Section 17.48.021 and Section 17.48.022 of this code. Before a business regulated by this chapter may commence operation, the applicant must have been issued a valid adult use planning permit or interim adult use planning permit.

D. The applicant must be qualified according to the provisions of this chapter, and the premises must be inspected and found to be in compliance with the law by the city and by the Orange County fire department.

E. Any person who wishes to operate an adult-oriented business must sign the application for the license as the applicant.

F. The fact that a person possesses any other valid license issued by the city or the county does not exempt the person from the requirement of obtaining an adult-oriented business license. A person who operates an adult-oriented business and possesses any other city or county license shall comply with the requirements and provisions of this chapter and all city codes as well as the requirements and provisions of such other license.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

A. Upon receipt of a license application, the city manager or designee shall determine whether it is complete and contains all information required by this section within two days of its receipt. If the application is incomplete, the city manager or designee shall deny the application and immediately inform the applicant in writing of the items needed to complete the application.

B. The city manager or designee, shall issue or deny the issuance of a license to an applicant within ten days after receipt of a properly completed and executed application and the concurrently filed and completed application for an adult use planning permit, including an interim adult use planning permit which shall be processed pursuant to Section 17.48.021 and Section 17.48.022 of this code. The city manager or designee, shall issue the license unless he or she finds one or more of the following to be true:

1. An applicant is under 18 years of age;

2. An applicant is overdue in payment to the city of fees owed by the applicant in relation to the adult-oriented business which is the subject of the application;

3. An applicant has failed to completely fill out the application for the license or has provided materially false information on the application;

4. The license fee required by this chapter has not been paid;

5. The premises to be used for the adult-oriented business has not been approved by the city and the fire department, as being in compliance with applicable laws and ordinances, including the issuance of an adult use planning permit or interim adult use planning permit pursuant to Sections 17.48.021 to 17.48.024 of this code;

6. The applicant is operating the adult-oriented business without a license in violation of Section 5.40.014 of this code;

7. That an applicant has been convicted of a specified criminal act for which:

a. Less than two years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a misdemeanor offense for the specified criminal acts which are sexual crimes against children; sexual abuse; rape; or crimes connected with another adult-oriented business including, but not limited to, distribution of obscenity; distribution, display or sale of material harmful to minors; prostitution; or pandering,

b. Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a felony offense; for the specified criminal acts which are sexual crimes against children; sexual abuse; rape; or crimes connected with another adult-oriented business including, but not limited to, distribution of obscenity; distribution, display or sale of material harmful to minors; prostitution; or pandering,

c. Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the convictions are of two or more misdemeanors for the specified criminal acts which are sexual crimes against children; sexual abuse; rape; or crimes connected with another adult-oriented business including, but not limited to, distribution of obscenity; distribution, display or sale of material harmful to minors; prostitution; or pandering; convictions of any such offense occurring within 24 months prior to the application;

8. The premises contain one or more private viewing areas.

C. Within ten days of the receipt of a completed application in accordance with the requirements of this section, the city manager or designee shall refer the application to the chief of police for investigation. Such investigation shall include obtaining the information pursuant to Section 2.64.130 et seq., of this code that is required of city employees. In the event the information requested pursuant to Section 2.64.130 et seq., of this code is not available within the ten-day period, the chief of police shall, if the application otherwise meets the requirements of this code, issue a status report on the issuance of the adult-oriented business license, whereupon the city manager or designee, shall issue the same. Should the information obtained pursuant to Section 2.64.130 et seq., of this code vary in a material degree from that set forth by the applicant in the application, such variance shall be cause to suspend or revoke the license in accordance with Sections 5.40.024 and 5.40.026 of this code. Any license issued prior to the city receiving the information required by Section 2.64.130 et seq., of this code shall state clearly on its face that the license is subject to suspension or revocation pursuant to Sections 5.40.024 and 5.40.026 of this code.

D. The license shall state on its face the name of the person or persons to whom it is issued, the expiration date, and the address of the adult-oriented business. The license shall be posted in a conspicuous place at or near the entrance to the adult-oriented business so that it may be easily read at any time.

E. The city clerk shall send to the applicant or licensee, by certified mail, return receipt requested, written notice of the action to issue or deny the license. The decision of the city manager or designee, to issue or deny issuance of the license shall be subject to appeal in accordance with the following procedures:

1. The appeal shall be submitted to and received by the city clerk within ten days of the date of such action for which the appeal is made. The appeal must be in writing on forms provided by the city, together with an appeal fee established by resolution of the city council, which may be amended from time to time. All appeals shall set forth the reason for asserting the appeal.

2. When a timely appeal is filed, the city council shall hear the matter or appoint a hearing officer to conduct a hearing on the matter. The hearing officer may be such person or body designated by the city council to perform all or a portion of their duties, or may be another official or body from another city or agency, or other person qualified to conduct a review of the matter. The hearing for an appeal shall take place within ten business day of the receipt of the appeal. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues, and may be represented by counsel. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness.

3. The city council or hearing officer shall render a written decision on the matter within five days of the close of the hearing on the appeal.

F. The decision of the city council or hearing officer concerning the appeal of a denial of a permit shall be final. If the denial of a permit is affirmed on review by the city council, the applicant or permittee may seek prompt judicial review of such administrative action in a court of competent jurisdiction as provided by law, pursuant to California Code of Civil Procedure Section 1094.5 et seq. The city shall make all reasonable efforts to expedite judicial review in accordance with Code of Civil Procedure Section 1094.8.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

The initial application fee, the initial license fee, and the annual renewal fee for an adult-oriented business license shall be set by resolution of the city council.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

An applicant or licensee shall permit representatives of the city, the city's police department, Orange County department of health services, the Orange County fire department, the city building and safety department, and the community development department to inspect the premises of an adult-oriented business for the purpose of insuring compliance with the provisions of this chapter at any time the premises is open for business, provided reasonable and normal business operations shall not be interfered with and the inspection is conducted in the same manner as an inspection for other businesses.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

Each license shall expire one year from the date of issuance and may be renewed only by making application upon penalty of perjury that there has been no material change in the business or its operation. Applications for renewal shall be filed at least 30 days before the expiration date; the application for renewal shall not extend the license beyond the expiration date. The city manager or designee shall issue the license or deny the application for renewal within ten days of the receipt of a completed application. If, in reviewing the application for renewal of the license, the city manager or designee, determines that the application will likely be denied, then the city manager or designee, shall cause an administrative hearing to be held within the same ten-day period at which time the applicant may present evidence supporting the application or contradicting the evidence presented by the city. The decision of the city manager or designee, to deny renewal of the license shall be subject to appeal to the city council by following the same procedures as set forth in Section 5.40.016(E).

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

The city manager or designee, the planning commission, or the city council may initiate proceedings to consider the suspension or revocation of an existing adult-oriented business license as may be necessary to assure the preservation of the public health and safety. Such proceedings shall include a hearing wherein the license holder is provided the opportunity to refute any evidence or findings of the city. If the evidence presented at the hearing establishes that one or more of the conditions exist as set forth in Section 5.40.025, then suspension shall be ordered; and, if the conditions set forth in Section 5.40.026 exist, then revocation of the adult-oriented business license shall be ordered.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

An adult-oriented business license shall be suspended if the evidence at the hearing establishes any one or more of the following conditions exist:

A. The conduct of the adult-oriented business does not comply with all applicable laws, including, but not limited to, the city's fire, building, zoning, or health and safety codes; or the locational criteria or design and performance standards set forth in this title and in Title 17 of this code are violated or not complied with by the adult-oriented business;

B. There was not a responsible person over 18 years of age on the premises to act as a manager at all times during which the adult-oriented business was open;

C. The licensee, manager or any agent or employee of the licensee or manager knows or should have known that the adult-oriented business has been used as a place where sexual intercourse, sodomy, oral copulation, masturbation, prostitution, assignation or other lewd acts occur or have occurred;

D. The licensee, his or her employees, agent, partner, director, officer, controlling stockholder or manager with management of day to day operations has violated any provision of this title or this code;

E. The licensee or manager has failed to remove all materials harmful to minors, including, but not limited to, wrappers, covers, labels, packaging, bags and magazines that have been discarded upon the grounds within 1,000 feet of the premises of the adult-oriented business;

F. The adult-oriented business is being operated, managed or conducted in violation of any condition of approval or performance standard of the adult-oriented business license, or adult use planning permit, if required;

G. The licensee, manager or any agent or employee of the licensee or manager refused to allow the lawful inspection of the premises by a city inspector or official, the police department, the Orange County fire department, city code enforcement officer, director of community development, or county health department or any designee thereof;

H. The licensee, manager or any agent or employee of the licensee or manager knowingly permitted gambling on the premises;

I. The manager or person acting in that capacity was found to be intoxicated or under the influence of a controlled substance while on duty at the adult-oriented business;

J. The adult-oriented business is operating in violation of the permitted hours of operation;

K. The adult-oriented business is operating without a city business license.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

An adult-oriented business license shall be revoked and no new adult-oriented business license may be requested by the licensee for any location within the city or by any other person for that same location within a one-year period following revocation if the evidence presented at the hearing on the revocation of the license establishes that one or more of the following conditions exists:

A. The licensee, his or her employee, agent, partner, director, officer, controlling stockholder or manager has knowingly made any false, misleading or fraudulent statement of material facts in the application for a license or permit, or in any report or record required to be filed with the city's police department, county health department, or any other city department or office in connection with the operation of the business;

B. The licensee, manager or any agent or employee of the licensee or manager has been convicted of a felony in a court of competent jurisdiction in conjunction with or as a result of the operation of the adult-oriented business;

C. The licensee, manager or any employee of the licensee or manager knowingly or with reckless disregard of the requirements of this title allows any minor into the establishment, permits the use of the facilities by a minor, and/or sells adult-oriented materials to a minor and/or material harmful to a minor;

D. The approved adult-oriented business has been expanded, or partially or wholly converted to another adult-oriented business without the required city approvals and permits;

E. There have been two suspensions of an adult-oriented business license within a one-year period;

F. The licensee or manager knowingly or with reckless disregard of the requirements of this title and state and federal law allowed the sale of controlled substances or allowed acts of prostitution on or about the premises;

G. The licensee or manager continued to operate the adult-oriented business during a suspension period of the adult-oriented business license;

H. The licensee has been convicted of a specified criminal act for which the required time period has not yet elapsed;

I. That on two or more occasions within a 12 month period, a person or persons committed an offense, occurring in or on the licensed premises, constituting a specified criminal act for which a conviction has been obtained, and the person or persons were employees of the adult-oriented business at the time the offenses were committed;

J. The licensee or manager is operating more than one adult-oriented business in the same building;

K. The adult-oriented business contains one or more private viewing areas as defined in this chapter;

L. The adult-oriented business has failed to provide, inaccurately provided, or failed to keep current the street address of the principal place of business or the location of any adult-oriented business in the city in accordance with Section 5.40.014(B); or

M. The licensee, manager or any agent or employee of the licensee or manager of the adult-oriented business knowingly or with reckless disregard of the requirements, violates or permits the violation any of the prohibited conduct described in Section 5.40.034 on three or more occasions within a 12 month period, regardless of whether a suspension or suspensions have been issued for such violations.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

A. The city manager or designee shall conduct all initial hearings concerning the suspension or revocation of licenses. If the city manager or designee, suspends or revokes a license, the city clerk shall send to the applicant or licensee, by both certified mail, return receipt requested, and regular first-class mail, written notice of the action. The decision to suspend or revoke the license shall be effective 20 days after the notice of the decision has been deposited in the U.S. mail.

B. An appeal of the decision to suspend or revoke the license may be made in accordance with requirements of Section 5.40.016(E) by filing a notice of the same with the city clerk prior to the date on which the decision becomes effective. A properly filed application for appeal stays the decision to suspend or revoke the license until a decision is rendered on the appeal.

C. The appeal proceedings shall be conducted pursuant to Section 5.40.016(E). The decision of the city council or hearing officer concerning the appeal shall be final. If the denial is affirmed on review by the city council or hearing officer, the permittee may seek prompt judicial review of such administrative action in a court of competent jurisdiction as provided by law, pursuant to California Code of Civil Procedure Section 1094.5 et seq. The city shall make all reasonable efforts to expedite judicial review in accordance with Code of Civil Procedure Section 1094.8.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

Any license shall be immediately void if the licensee attempts to transfer the license to another person or location. The attempted transfer of the adult-oriented business license includes the transfer of ownership or control of the adult-oriented business by any of the following:

A. The sale, lease or sub-lease of an adult-oriented business;

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

C. The establishment of a trust, gift or 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.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

The location of an adult-oriented business shall be as specified in Sections 17.48.030 and 17.48.032.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

A. No person shall operate or cause to be operated an adult-oriented business, regardless of whether or not a permit has been issued under this code, knowingly, or with reason to know, permitting, suffering or allowing any employee:

1. To engage in a couch dance or straddle dance with a patron at the business;

2. To contract or otherwise agree with a patron to engage in a couch dance or straddle dance with a person at the business;

3. To intentionally touch any patron at an adult-oriented business while engaged in the display or exposure of a specified anatomical area or engaged in or simulating a specified sexual activity;

4. To voluntarily be within six feet of any patron while engaged in the display or exposure of any specified anatomical area or engaged in or simulating a sexual activity.

B. No person at any adult-oriented business, regardless of whether or not said business is permitted under this code, shall intentionally touch an employee who is displaying or exposing any specified anatomical area or engaging in or simulating a specified sexual activity at the adult-oriented business.

C. No person at any adult-oriented business, regardless of whether or not said business is permitted under this code, shall engage in a couch dance or straddle dance with an employee at the business who is displaying or exposing any specified anatomical area or engaging in or simulating a specified sexual activity.

D. No employee of an adult-oriented business, regardless of whether or not a permit has been issued for said business under this chapter, shall engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service or solicit a service between the hours of two a.m. and nine a.m. of any particular day.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)

A person who operates or causes to be operated an adult-oriented business without a valid license or in violation of Section 5.12.032, is subject to a suit for injunction as well as prosecution for criminal violations.

(Ord. 588 § 5, 1995; Ord. 670 § 2, 2003)