Martinez Municipal Code Art. 1 General Provisions

It is the intent of this Chapter to provide special design guidelines, standards and development regulations to regulate the time, place and manner of the operation of adult-oriented businesses in order to minimize the negative secondary effects associated with such uses including, but not limited to, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of adult-oriented businesses in close proximity to each other or proximity to other incompatible uses such as schools, parks, playgrounds, churches, and residentially zoned districts or uses. The City Council finds that it has been demonstrated in various communities that the concentration of adult-oriented businesses causes an increase in the number of transients in the area, and an increase in crime, and in addition to the effects described above can cause other businesses and residents to move elsewhere. It is, therefore, the purpose of this Chapter to establish reasonable and uniform regulations to prevent the concentration of adult-oriented businesses or their close proximity to incompatible uses, while permitting the location of adult-oriented businesses in certain areas. Additionally, it is the purpose of this Chapter to regulate adult-oriented businesses in order to promote the health, safety, morals 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 adult-oriented materials. Similarly, it is not the intent nor effect of this Chapter to restrict or deny access by adults to adult-oriented materials protected by the First Amendment, or to deny access by the distributors and exhibitors of adult-oriented entertainment to their intended market. Neither is it the intent nor effect of this Chapter to condone or legitimize the distribution of obscene material.

(Ord. 1339 C.S. § 3, 2007)

A.

Adult arcade.

The term "adult arcade," as used in this Chapter, means any business establishment or concern containing 1 or more coin or slug-operated or manually or electronically controlled still or motion picture projectors, video machines, projector or similar image-producing devices, that are maintained to display images to an individual or group of individuals when those images are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

B.

Adult bookstore.

The term "adult bookstore," as used in this Chapter, means any establishment which as a regular and substantial course of conduct, displays and/or distributes sexually oriented merchandise, sexually oriented material, books, periodicals, magazines, or other printed materials, or photographs, drawings, sculptures, films, motion pictures, videos, discs, cassettes, slides, tapes, records or other form of visual or audio representations which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities and/or specified anatomical areas (See "adult-oriented business" for definition of regular and substantial course of conduct.)

C.

Adult cabaret.

The term "adult cabaret," as used in this Chapter, means a nightclub, bar, lounge, restaurant, or similar business establishment or concern which features as a regular and substantial course of conduct, any type of live entertainment, films, motion pictures, computer-generated images, videos, discs, slides, or other photographic reproductions, or other oral, written or visual representations which are distinguished or characterized by an emphasis upon matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

D.

Adult dance studio.

The term "adult dance studio," as used in this Chapter, means any business establishment or concern which provides for members of the public a partner for dance where the partner, or the dance is distinguished or characterized by an emphasis upon matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

E.

Adult hotel/motel.

The term "adult hotel/motel," as used in this Chapter, means a hotel, motel or other similar business establishment or concern offering public accommodations for any form of consideration which as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed-circuit television, films, computer-generated images, motion pictures, videos, discs, slides, other photographic reproductions, or other medium, material which is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas and which rents, leases, or lets any room for less than a 12-hour period, or rents, leases, or lets any single room more than once in a 24-hour period.

F.

Adult modeling studio.

The term "adult modeling studio," as used in this Chapter, means any business or premises where there is furnished, provided or procured, a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas where such model(s) is being observed or viewed by any person for the purpose of being sketched, photographed, painted, drawn, sculpted, filmed or videotaped or otherwise depicted for a fee, compensation, gratuity or other thing of value as consideration for the right or opportunity to so observe the model or to remain on the premises. "Adult modeling studio" does not include any live art class or any studio or classroom which is operated by any public agency, or any private educational institution authorized to issue and confer a diploma or degree pursuant to standards set by the State Board of Education.

G.

Adult-oriented business.

The term "adult-oriented business" means any business establishment or concern which as a regular and substantial course of conduct operates as an adult arcade, adult bookstore, adult cabaret, adult dance studio, adult hotel/motel, adult modeling studio, adult theater; any business establishment or concern which as a regular and substantial course of conduct sells or distributes or offers for sale or distribution 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 areas. "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 areas as a regular and substantial course of conduct when 1 or more of the following conditions exist:

The area devoted to adult merchandise and/or sexually oriented material exceeds more than 20% of the total display or floor space area open to the public; and

The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on specified sexual activity or specified anatomical areas at least 4 times in any month; and

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 matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

H.

Adult theater.

The term "adult theater," as used in this Chapter, means a business establishment or concern which, as a regular and substantial course of conduct, presents live entertainment performances, motion pictures, videos, computer images, slide photographs, or other pictures or visual representations or reproductions which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

I.

Adult-oriented business operator.

The term "adult-oriented business operator" (hereinafter "operator") means a person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of an adult-oriented business or the conduct or activities occurring on the premises thereof.

J.

Applicant.

The term "applicant" means a person who is required to file an application for a permit under this Chapter, including an individual owner, managing partner, officer of a corporation, or any other operator, manager, employee, or agent of an adult-oriented business.

K.

Bar.

For the purposes of this Chapter, a "bar" means any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises.

L.

Church.

The term "church" as used in this Chapter, means a structure which is used primarily for religious worship and related religious activities.

M.

Distinguished or characterized by an emphasis upon.

As used in this Chapter, the term "distinguished or characterized by an emphasis upon" means and refers to the dominant or essential theme of the object described by such phrase. For instance, when the phrase refers to films which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; the films so described are those whose dominant or predominant character or theme are the depiction of the enumerated sexual activities or anatomical areas. See "Pringle v. City of Covina (1981) 115 Cal.App.3d 151."

N.

Entertainer.

As used herein, "entertainer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas in an adult-oriented business.

O.

Establishment of an adult-oriented business.

As used herein, to "establish an adult-oriented business" means and includes any of the following:

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

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

The addition of any of the adult-oriented businesses defined herein to any other existing adult-oriented business; or

The relocation of any such adult-oriented business.

P.

Figure model.

The term "figure model," as used in this Chapter, means any person who, for pecuniary compensation, consideration, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted.

Q.

Live art class.

The term "live art class" as used in this Chapter, means any premises on which all of the following occur: there is conducted a program of instruction involving the drawing, photographing, or sculpting of live models exposing specified anatomical areas; instruction is offered in a series of at least 2 classes; the instruction is offered indoors; an instructor is present in the classroom while any participants are present; and preregistration is required at least 24 hours in advance of participation in the class.

R.

Nudity or a state of nudity.

"Nudity" or "state of nudity," as used in this Chapter, means the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the areola.

S.

Operate an adult-oriented business.

As used in this Chapter, "operate an adult-oriented business" means the supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of the conduct of activities of an adult-oriented business or activities within an adult-oriented business.

T.

Permittee.

The term "permittee," as used in this Chapter, means the person to whom an adult-oriented business permit is issued.

U.

Person.

The term "person," as used in this Chapter, means any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

V.

School.

The term "school," as used in this Chapter, means any child or day care facility, or an institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained pursuant to standards set by the State Board of Education. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education or an institution of higher education, including a community or junior college, college, or university, but it does not include a vocational institution.

W.

Semi-nude.

The term "semi-nude," as used in this Chapter, means a state of dress in which clothing covers no more than the genitals, pubic region, buttocks, areola of the female breast, as well as portions of the body covered by supporting straps or devices.

X.

Sexual encounter center.

"Sexual encounter center," as used in this Chapter, means any business, agency or person who, for any form of consideration or gratuity, provides a place where 3 or more persons, not all members of the same family, may congregate, assemble or associate for the purpose of engaging in specified sexual activities or exposing specified anatomical areas.

Y.

Sexually oriented material.

The term "sexually oriented material," as used in this Chapter, means any element of sexually oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, disc, computer-generated image, or other written, oral or visual representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

Z.

Sexually oriented merchandise.

The term "sexually oriented merchandise," as used in this Chapter, means sexually oriented implements and paraphernalia, including, but not limited to, dildos, auto sucks, sexually oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery or electrically operated vaginas or penises, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity or which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

AA.

Specified anatomical areas.

As used in this Chapter, "specified anatomical areas" means and includes any of the following:

Less than completely and opaquely covered human (a) genitals or pubic region, (b) buttocks, and/or (c) female breast below a point immediately above the top of the areola; or

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

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

BB.

Specified sexual activities.

As used herein, "specified sexual activities" means and includes any of the following, whether performed directly or indirectly through clothing or other covering:

Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral-anal copulation, bestiality, direct physical stimulation of genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory function in the context of a sexual relationship, any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerastia; or

Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or

Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; or

Fondling, or touching of nude human genitals, pubic region, buttocks, or female breast; or

Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or

Erotic or lewd touching, fondling, or other sexually oriented contact with an animal by a human being; or human excretion, urination, menstruation, vaginal or anal irrigation; or

The presence of any person who performs, or appears in a state of nudity or semi-nudity.

(Ord. 1339 C.S. § 3, 2007)