McFarland Municipal Code Ch. 17.102 Specific Use Development Standards

It is the purpose and intent of this chapter to identify land uses and activities which possess the potential to cause deleterious effects to the community in which they are located and to subject such uses to specific regulations with the intent of minimizing to the extent practical these deleterious effects. Further it is intended that in the zone districts in which these land uses are permitted they are conducted in a manner which is consistent with the protection of the public health safety and welfare in accordance with the goals policies objectives and implementation programs contained in the general plan.

It is further determined that it is in the interest of public health safety and welfare of the citizens of the city to protect minors from viewing publicly displayed harmful matter and that pursuant to Penal Code Section 313.1(d) and (e) the city is authorized to adopt ordinances which restrict the display of harmful matter to minors by the use of blinder racks. It has also been found that there exists an increasing trend toward the display of harmful matter within the meaning of Penal Code Section 313, at grocery stores, convenience stores, video stores, and other retail outlets, as well as from news racks, and that restriction of public display of such harmful matter will keep the adverse impacts of such harmful matter upon minors to a minimum.

(Ord. No. 001-2009, § 1, 6-11-09)

The provisions of this chapter shall apply to the activities and land uses specified by this chapter in addition to any standards and regulations established by this title which may also be applicable to these specified land uses or activities.

(Ord. No. 001-2009, § 1, 6-11-09)

A. Applicability. It is the intent of this chapter to prevent community wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of businesses in close proximity to each other or proximity to other incompatible uses such as schools for minors, churches, and residentially zoned districts or uses. The city council finds that it has been demonstrated in various communities that the concentration of businesses causes an increase in the number of transients in the area and an increase in the crime, and in addition the effects described above can cause other businesses and residents to move elsewhere. It is, therefore, the purpose of this title 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.

B. Findings of the City Council.

1. The city council, in adopting the ordinance codified in this chapter, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of businesses in other cities: American Center for Law and Justice (1996); New York, New York (1994); State of New Jersey (1994); 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). The City Council finds that these studies are relevant to the problems addressed by the City in enacting this ordinance to regulate the adverse secondary side effects of adult oriented businesses and more specifically finds that these studies provide convincing evidence that:

a. Adult-oriented businesses are linked to increases in the crime rates in those areas in which they are located and in surrounding areas.

b. 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 deterioration of the areas in which they are located.

c. The proximity and concentration of adult-oriented businesses adjacent to residential, recreational, religious, educational, and other adult-oriented business uses can cause other businesses and residence to move elsewhere.

d. There is substantial evidence that an increase in crime tends to accompany, concentrate around and be aggravated by adult-oriented businesses, including, but not limited to, an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish convincing evidence that adult-oriented businesses which are not regulated as to permissible locations often have a deleterious effect on nearby businesses in residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values.

2. Based on the foregoing, the city council finds and determines that special regulation of adult-oriented businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increase in crime rates or to the blighting or deterioration of the areas in which they are located or surrounding areas. The need for such special regulations is based upon 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 parks, schools, churches, thereby having a deleterious effect upon the adjacent areas. It is the purpose and intent of these special regulations to prevent the concentration of adult-oriented businesses and thereby prevent such adverse secondary side effects.

3. The locational requirements, established by this chapter, do not unreasonably restrict the establishment or operation of constitutionally protected adult oriented businesses that are provided by this chapter.

4. In developing the ordinance codified in this chapter, the city council has been mindful of legal principles relating to regulation of adult-oriented 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-oriented businesses. The city council has considered decisions of the United States Supreme Court regarding local regulations of adult-oriented businesses including, but not limited to, Young v. American Mini Theaters, Inc. 427 U S 50 (1976) Reh. Denied 475 U S 1132); FWIPBS, Inc. v. Dallas 493 U S 215 (1990); Barnes v. Glenn Theater 501 U S 560 (1991); 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); several California cases including but not limited to: City of National City v. Wiener. 3 Cal4th 832 (1993); People v. Superior Court (Lucero) 149 Cal3d 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; Hana On. Inc. v. Arlington (5th Cir 1995) 65 F. 3d 1248; Mitchell v. Commission on Adult Entertainment (3d 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.

5. The city council also finds that locational criteria alone do not adequately protect the health safety and general welfare of the citizens of the city and thus certain requirements with respect to the ownership and operation of adult oriented businesses are in the public interest. In addition to the findings and studies conducted in other cities regarding increases in crime rates decreases in property values and the blighting of areas in which such businesses are located the city council also takes legislative notice of the facts recited in the case of K. v. Inc. v. Kitsay County 793 F. 2d 1053 (1986), regarding how live adult entertainment results in secondary effects such as prostitution drug dealing and other law enforcement problems.

6. The city council finds the following in part based upon its understanding of the documents and judicial decision in the public record:

a. Evidence indicates that some dancers models and entertainers and other persons who publicly perform specified sexual activities or publicly display specified anatomical parts in adult oriented businesses collectively referred to as performers have been found to engage in sexual activities with patrons of adult-oriented businesses on the site of the adult oriented business.

b. Evidence has demonstrated that performers employed buy adult oriented businesses have been found to offer and provide private shows to patrons who for a price are permitted to observe and participate with the performers in live sex shows.

c. Evidence indicates that performers at adult oriented businesses have been found to engage in acts of prostitution with patrons of the establishment.

d. Evidence indicates that fully enclosed booths individual viewing areas and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as a location for engaging in unlawful sexual activity.

e. As a result of the above and the increase in incidents of AIDS and hepatitis B which are both sexually transmitted diseases the city has a substantial interest in adopting regulations which will reduce to the greatest extent possible the possibility of the occurrence of prostitution and casual sex acts at adult oriented businesses.

7. Zoning licensing and other police power regulations are legitimate reasonable means of accountability to help protect the quality of life in the city and to help assure that all operators of adult oriented businesses comply with reasonable regulations and are located in places that minimize the diverse secondary effects which naturally accompany the operation of such businesses.

8. The city council recognizes the possible harmful effects on children and minors exposed to the effects of such adult oriented businesses and the deterioration of respect for family values and the need and desire of children and minors to stay away from and avoid such businesses which causes children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses and the city council desires to minimize and control the adverse secondary side effects associated with the operation of adult oriented businesses and thereby protect the health safety and welfare of the citizens of the city protect the citizens from increased crime preserve the quality of life preserve the property values and the character of surrounding neighborhoods and businesses deter the spread of urban blight and protect against the threat to health from the spread of communicable and sexually transmitted diseases.

9. It is not the intent of the city council in enacting the ordinance codified in this chapter or any provision thereof to condone or legitimize the distribution of obscene material and the city council recognizes that state law prohibits the distribution of the obscene materials and expects and encourages law enforcement officials to enforce state obscenity statutes against such illegal activities in the city.

10. 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 statue of the state of California regarding public nuisances unlawful or indecent exposure sexual conduct lewdness obscene or harmful matter or the exhibition or public display thereof.

11. The city council finds the following in part based upon its understanding of the documents and judicial decisions in the public record.

a. Evidence indicates that some dancers models and entertainers and other persons who publicly perform specified sexual activities or publicly display specified anatomical parts in adult oriented businesses collectively referred to as performers have been found to engage in sexual activities with patrons of adult oriented businesses on the site of the adult oriented business.

b. Evidence has demonstrated that performers employed by adult oriented businesses have been found to offer and provide private shows to patrons who for a price are permitted to observe and participate with the performers in live sex shows.

c. Evidence indicates that performers at adult oriented businesses have been found to engage in acts of prostitution with patrons of the establishment.

12. In prohibiting public nudity in adult oriented businesses the city council does not intend to proscribe the communication of erotic messages or any other communicative element or activity but rather only to prohibit public nudity due to the secondary impacts associated with such public nudity.

13. The city council also finds as a wholly independent basis that it has a substantial public interest in preserving societal order and morality and that such interest is furthered by a prohibition on public nudity.

14. While the city council desires to protect the rights conferred by the United States Constitution to adult oriented businesses it does so in a manner that ensures the continued and orderly development of property within the city and diminishes to the greatest extent feasible those undesirable secondary effects which the aforementioned studies have shown to be associated with the development operation of adult oriented businesses.

15. In enacting a nudity limitation the city declares that the limitation is a regulatory licensing provision and not a criminal offense. The city has not provided a criminal penalty for a violation of the nudity limitation. The city adopts such a limitation only as a condition of issuance and maintenance of an adult oriented business permit issued pursuant to this code.

16. The city council finds that preventing the exchange of money between entertainers and patrons also reduces the likelihood of drug and sex transactions occurring in adult oriented businesses.

17. Requiring separations between entertainers and patrons reduces the likelihood that such persons will negotiate narcotics sales and or transact sexual favors within the adult oriented business.

18. Enclosed or concealed booths and dimly lit areas within adult oriented businesses greatly increase the potential for misuse of the premises including unlawful conduct of a type which facilitates transmission of disease. Requirements that all indoor areas be open to view by management at all times and that adequate lighting be provided are necessary in order to reduce the opportunity for and therefore the incidence of illegal conduct within adult oriented businesses and to facilitate the inspection of the interior of the premises thereof by law enforcement personnel.

C. Establishment of an adult oriented business as used herein shall mean and include any of the following:

1. The opening or commencement of any adult oriented business as a new business.

2. The conversion of an existing business whether or not an adult oriented business to any adult oriented business defined herein.

3. The addition of any of the adult oriented businesses defined herein to any other existing adult oriented business.

4. The relocation of any such adult oriented business.

D. Definitions.

1. Specified Anatomical Areas. As used herein, "specified anatomical areas" shall mean and include any of the following:

a. Less then completely and opaquely covered human (i) genitals or pubic region; (ii) buttocks; and (iii) female breast below a point immediately above the top of the areola;

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

c. Any device, costume or covering that simulates any of the body parts included in subdivision (a) or (b) above.

2. Specified Sexual Activities. As used herein, "specified sexual activities" shall mean and include any of the following, whether performed directly or indirectly through clothing or other covering:

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

b. Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;

c. Masturbation, actual or simulated;

d. Excretory functions as part of or in connection with any of the other activities described in subdivisions (a) through (c) of this subsection.

3. Adult-Oriented Business. As used herein, "adult oriented business" shall mean any of the following:

a. Adult Arcade. The term "adult arcade" as used in this chapter, is an establishment where, for any form of consideration one or more still or motion picture projectors, video cassettes, or other similar image producing devices are maintained to show images for viewing by five or fewer persons each, are used to show films, computer generated images, motion pictures, video cassettes, slide or other photographic reproductions twenty-five percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

b. Adult Bookstore. The term "adult bookstore" as used in this chapter, is an establishment that sells or rents books, magazines, periodicals or other printed matter photographs, films, motion pictures, slides, tapes, video cassettes, records or any other form of visual or audio representation twenty-five percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

c. Adult Cabaret. The term "adult cabaret" as used in this chapter, means a nightclub, bar, restaurant or similar business establishment which: (1) regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities; and/or (2) which regularly features persons who appear semi nude; and/or (3) shows films, computer generated images, motion pictures, video cassettes, slide or other photographic reproduction twenty-five percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

d. Adult Hotel or Motel. The term "adult hotel or motel" as used in this chapter, means a hotel or motel, or similar business establishment offering public accommodations for any form of consideration which provides patrons with closed circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides or other photographic reproductions thirty percent (30%) or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

e. Adult Motion Picture Theater. The term "adult motion picture theater" as used in this chapter, is a business establishment where, for any form of consideration, films, computer generated images, motion pictures, video cassettes, slides or similar photographic reproductions are shown and twenty-five percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

f. Adult Newsstands. The term "adult newsstands" as used in the chapter, shall mean the following:

i. Any coin operated machine or device that dispenses material substantially devoted to the depiction of specified sexual activities or specified anatomical areas; and

ii. Any shelf countertop or rack indoor or outdoor used for displaying for sale rental or other use to the public magazines newspapers video cassettes or other periodicals substantially devoted to the depiction of specified sexual activities or specified anatomical areas where twenty-five percent of the area is devoted to said uses in non adult businesses. This does not apply to interior display fixtures in approved adult entertainment businesses.

g. Adult Theater. The term "adult theater" as used in this chapter, means a theater, concert hall auditorium or similar establishment which, for any form of consideration, regularly features live performances which are distinguished or characterized by an emphasis on the display of specified anatomical areas or specified sexual activities.

h. Church. The term "church" as used in this chapter means an institution that people regularly attend to participate in or hold religious services, meetings, or other activities. The term "church" shall not carry a secular connotation and shall include buildings in which the religious services of any denomination are held.

i. Distinguished or Characterized by an Emphasis Upon. As used in this chapter, the term "distinguished or characterized by an emphasis upon" shall mean and refer 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 and theme are the depiction of the enumerated sexual activities or anatomical areas. See Prinale v. City of Covina. 115 Cal. App.3 151 (1981).

j. Modeling Studio. The term "modeling studio" as used in this chapter means a business which provides, of pecuniary compensation, monetary or other consideration, hire or reward, figure models who for the purposes of sexual stimulation of patrons, display "specified anatomical areas" to be observed, sketched, photographed, painted, sculpted or otherwise depicted by persons paying such consideration. "Modeling studio" does not include schools maintained pursuant to standards set by the State Board of Education. "Modeling studio" further does not include a studio or similar facility owned, operated or maintained by an individual artist, or group of artists, and which does not provide permit or make available "specified sexual activities."

k. Regularly Features. The term "regularly features" with respect to an adult theater or adult cabaret means a regular and substantial course of conduct. The fact that live performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities occurs on two or more occasions within a thirty-day period of four or more occasions within a one hundred eighty day period, shall to the extent permitted by law be deemed to be regular and substantial course of conduct.

l. School. The term "school" as used in this chapter, is 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, but it does not include a vocational or professional institution of higher education, including a community or junior college, or university.

m. Semi Nude. The term "semi nude" 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.

E. General Provisions. Adult oriented businesses may be permitted in compliance with the provisions of this chapter where the land use designation of the general plan for the subject property is "industrial" and where the zone district in which the subject property is located is "industrial" subject to the limitations and design standards specified within said zone districts in accordance with the provisions of this chapter.

F. Development Standards.

1. Minimum Proximity Requirements. The distances provided in this section shall be measured by following a straight line, without regard to intervening buildings, from the nearest point of the property upon which the proposed land use is to be located to the nearest point of the property from which the proposed land use is to be separated.

2. Adult oriented businesses shall not be established or conducted within:

a. One thousand feet of any residential use;

b. One thousand feet of any funeral parlor mortuary or similar facility;

c. One thousand feet of a public or private school for minors;

d. One thousand feet of a licensed day care facility for minors;

e. One thousand feet of a church synagogue or other place of worship;

f. One thousand feet from any other adult entertainment business; and

g. One thousand feet of any publicly used facility, such as parks, libraries, any civic buildings; however, this subsection shall not apply to such uses as public utility facilities such as the airports, utility plants, and similar uses.

3. Exterior Display. No adult entertainment business shall be operated in a way that permits observation of material depicting or describing "specified anatomical areas" or "specified sexual activities," as defined in this title from any location outside of the building in which an adult entertainment business is operating.

4. Advertising structures, advertisements displays or other promotional material depicting "specified anatomical areas" or "specified sexual activities" or displaying instruments, devices or paraphernalia which are designed for use in connection with "specified sexual activities" shall not be visible from the outside of a building. Further, no building shall be painted in garish colors or such other fashion that will effectuate the same purpose as a sign.

5. All building openings, entries and windows for adult-oriented businesses shall be located, covered, or screened in a manner to prevent a view into the interior from any exterior public or semipublic area.

6. No loudspeakers or sound equipment shall be used for adult-oriented businesses that can be discerned by the public from public and or semipublic areas.

G. An interior sign, with a minimum surface area of four square feet, shall be posted in a prominent location inside the adult entertainment business, stating, in English and Spanish as follows:

"Penal Code Section 314 (Indecent exposures: Exhibitions: Penalty). Every person who willfully and lewdly either:

1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or

2. Procures, counsels, or assists any person to expose himself or take part in any model artist exhibition, to make any other exhibition of himself to public view, to view any number of persons engaged in actions deemed an offense to decency, or be adapted to excite to vicious or lewd thoughts or acts, is guilty of a misdemeanor.

H. Operational Requirements.

1. All activities pertaining to the operation of an adult entertainment business shall be conducted inside the walls of the proposed building and shall be out of sight and sound from any location outside the building. This shall not apply to approved outdoor signage, for the purpose of notifying potential customers of the business.

2. Within the adult entertainment business, all image producing devices shall be located so that the machines are open to view from any side and are without obstructions or separations that would block from open sight, any patrons using said machines.

3. A responsible adult shall be present on the premises at all times and shall observe and supervise the use of all image-producing devices and all areas of the business available to public access. Adult entertainment businesses containing over forty image-producing machines shall require the presence of two responsible adults to observe and supervise all areas of the business available to public access.

4. Facility Design Requirements. All adult entertainment businesses other than such businesses that are established as a tenant within an industrially zoned center containing multiple tenants shall be designed and constructed to blend into, and appear as an integral part of, the built environment that characterizes the surrounding area.

5. Exclusion of Minors. Access to any adult entertainment business by a minor shall be prohibited. A sign shall be posted on all entrances restricting inclusion or entrance of minors. No minors shall be employed by any adult entertainment business nor permitted entrance into the premises.

6. Minimum Lighting. No person shall operate an adult entertainment business, excluding adult motion picture theaters, unless alight level of not less than two foot candles at floor level is maintained in every portion of said establishment to which the public is admitted.

7. Maximum Occupancy Load. No person shall operate an adult entertainment business in which the number of persons in any room or partitioned portion of a room where an image-producing device is located exceeds one person per thirty square feet. The maximum occupancy permitted in any room or partitioned portion of a room in which any image-producing device is located shall be conspicuously posted by the operator and shall remain posted at the entrance of said room.

8. Maximum Number of Devices. No person shall operate an adult entertainment business in which the number of image-producing devices exceeds the maximum occupancy load permitted in any room or partitioned portion of a room in which an image-producing device is located.

9. Free Access to Law Enforcement, Fire, Health and Safety Personnel, City Inspectors. No person shall deny access to an adult entertainment business for the purpose of a reasonable inspection to enforce compliance with building fire, electrical, health, or plumbing regulations or California State Law.

10. Use of Terms. The term "sexually-oriented" and "adult-oriented" are synonymously used.

11. Other Remedies. The provisions of subsection (H)(10) of this section are to be construed as added remedies not in conflict with or derogation of any other actions or proceedings or remedies otherwise provided by law.

I. Nonconforming Establishments.

1. Any adult entertainment business established and conducted as a lawful business and a lawful use at the time this title became effective, has been in continuous operation since that time, and is not in conformance with the requirements of this title shall be recognized as a legal nonconforming use.

2. Any non-conforming adult entertainment use shall not be enlarged or changed by any of the following means unless such a change will bring the business into full compliance with the requirements of this section.

a. Increase in the size of the floor area or use area of a building or portion of a building in which the business is located;

b. Use of an adjacent building in whole or part, whether on the same lot or an adjacent lot;

c. Conversion of an existing adult entertainment business to any other adult entertainment business; and

d. Addition of another adult entertainment business to an existing adult entertainment business.

3. The establishment of any land use specified in Section 17.102.030(C)(2) of this chapter, within the prescribed distances to an existing adult-oriented business, shall not, by establishment of that land use, require the removal of the adult-oriented business, provided that the adult-oriented business is a legal use or a legal nonconforming use and is in conformance with all provision of this title and other applicable ordinances and statutes.

J. Amortization of Nonconforming Adult-Oriented Business Uses. Any use of real property existing on the effective date of this title, which does not conform to the provisions of this section but which was constructed, operated, and maintained in compliance with all previous regulations, shall be regarded as a nonconforming use which may be continued for ten years after the effective date of the ordinance codified in this chapter. On or before such date, all such non-conforming uses shall be terminated unless an extension of time has been approved by the city council in accordance with the provisions of this chapter.

1. Abandonment. Notwithstanding the above, any discontinuance or abandonment of the use of any lot or structure as an adult-oriented business shall result in a loss of legal nonconforming status of such use.

2. Amortization—Annexed Property. Any adult-oriented business which was a legal use at the time of annexation of the property and which is located in the, but which does not conform to the provisions of this chapter shall be terminated within ten years following the date of annexation unless an extension of time has been approved by the city in accordance with the provisions of this chapter.

K. Extension of Time for Termination of Nonconforming Use. The owner or operator of a nonconforming use as described in this chapter may apply under the provisions of this section to the city council for an extension of time within which to terminate the nonconforming use.

1. Time and Manner of Application. An application for an extension of time within which to terminate a use made nonconforming by the provisions of this chapter may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. Such an application must be filed with planning department at least ninety days but no more than one hundred eighty days prior to the time in which to terminate such use.

2. Content of Application—Fees. The application shall state the ground for requesting an extension of time. The filing fee for such application shall be the same as that for a variance as is set forth in the schedule of fees established by resolution from time to time by the city council.

3. Hearing Procedure. The city manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within forty-five days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. 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. The decision of the hearing officer shall be final and subject to judicial review pursuant to Code of Civil Procedure Section 1094.6.

4. Approval of Extension—Findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved and shall be approved only if the hearing officer makes all of the following findings or such other findings as are required by law:

a. The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to another use; and such investment was made prior to the effective date of this Section 17.102.30 of this chapter.

b. The applicant will be unable to recoup said investment as of the date established for termination of the use; and

c. The applicant has made good faith efforts to recoup the investment and to relocate the use to a location in conformance with the provisions of this Chapter.

L. Regulations Non-Exclusive.

1. 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 or statute of the state of California regarding public nuisance sexual conduct. Lewdness, obscene or harmful matter, or the exhibition or public display thereof.

2. The regulations set forth in this section are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other regulations pertaining to the operation of adult entertainment establishments set forth elsewhere in applicable ordinances.

M. Display of Harmful Material to Minors Prohibited.

1. It shall be unlawful to display, because to be displayed, or permit to be displayed for commercial purposes any harmful matter in any public place except for a public place from which minors are excluded.

2. Harmful matter is not considered to be displayed if it is located in an area that places such material reasonably beyond the reach of a minor and a device, commonly known as a blinder rack, is placed in front of such harmful matter.

3. Any person who sells or rents video recordings containing harmful matter shall comply with Penal Code Section 313.1.(e) which requires the creation of a separate area within a business establishment for the placement of such video recordings for display of any material advertising the sale or rental of such video recordings. Additionally, any harmful matter, placed or displayed in that separate area, must be obscured by a blinder rack if the harmful matter can be viewed by persons outside that area.

4. Any news rack, which offers harmful matter for sale, must place a blinder rack in front of such harmful matter so as to obscure the lower two-thirds of the material displaying said harmful matter. For purposes of this subsection, a wrapper which obscures the lower two-thirds of the material and which is fastened securely to the material may be used in-lieu of a blinder rack.

(Ord. No. 001-2009, § 1, 6-11-09)

A. Findings. The city council finds that:

1. The U.S. Center for Disease Control has found that at least four hundred thirty-four thousand Americans die each year from tobacco caused diseases;

2. The National Institute of Drug Abuse has concluded that there is a strong correlation between drug use and violence and that hookah bars and tobacco shops promote the use of illegal or illicit drugs.

3. Strong legislative action is needed to curtail the wide availability of all types of paraphernalia, tobacco and tobacco products.

B. Applicability. The purpose of this chapter is to regulate the location and operation of retail purveyors of tobacco and tobacco products, electronic vapor devices, electronic vapor inhalation substances, hookahs, and electronic/vapor substance inhalation shops in the city of McFarland in order to address the health issues described in subsection A of this section and to maintain the city's character, the diversity and vitality of the community's commercial areas, and the quality of life of McFarland residents.

C. Definitions. For the purposes of this chapter, the following definition shall apply:

1. "Electronic vapor device" means any device with a heating element, a battery, or an electronic circuit that provides nicotine or other vaporized liquids to the user in a manner that simulates smoking tobacco products, shisha, herbs or any other product that produces smoke.

2. "Electronic vapor inhalation substance products" means cartridges, cartomizers, e-liquid, smoke juice, tanks, tips, atomizers, vaporizers, electronic smoking device batteries, electronic smoking device chargers, and any other item specifically designed for the preparation, charging, or use of electronic vapor devices.

3. "Electronic/vapor substance inhalation lounges" are defined as those businesses where customers can smoke or inhale vapor from electronic/vapor substance inhalation products, commonly known as "electronic cigarettes," "e-cigarettes," "e-cigars," "e-cigarillos," "e-pipes," "e-hookahs," "electronic nicotine delivery systems," and other similar devices.

4. "Electronic/vapor substance inhalation shops" are defined as those businesses that devote at least fifteen percent or more of floor space, for the display of electronic/vapor substance inhalation products, commonly known as "electronic cigarettes," "e-cigarettes," "e-cigars," "e-cigarillos," "e-pipes," "e-hookahs," "electronic nicotine delivery systems," and other similar devices, as well as such cartridges, substances and additives used to experience the sensation of smoking vapors, tobacco and non-tobacco substances.

5. "Hookah bar" means a business location that provides for the ingestion, inhalation or consumption of pipe tobacco, flavored tobacco, non-flavored tobacco, shisha, dried fruits, or other substances in which vapor or smoke is passed through a water basin before inhalation.

6. "Minor" means any individual who is less than eighteen years old.

7. "Person" means any individual, partnership, cooperative association, private corporation, personal representative, receiver, trustee, assignee, or any other legal entity.

8. "Public playground/park/recreation area" means an area to which the public, and particularly minors, come to participate in athletic or recreational activities, whether or not such activities are supervised or organized. Such areas include, but are not limited to, publicly owned and maintained parks, athletic fields, playgrounds, picnic areas, any outdoor premises or grounds owned or operated by the city, a public or private school, child care center, and any youth or recreational facilities such as the Boys' and Girls' Club, YMCA and YWCA, that contains any play or athletic equipment used or intended to be used by minors.

9. "School" means an institution of learning for minors, whether public or private, which offers instruction in those courses of study required by the California Education Code or which is maintained pursuant to standards set by the State Board of Education, or which is maintained for preschool or day care services. This definition includes a day care center, nursery school, kindergarten, elementary school, junior high school, senior high school, or any special institution of learning under the jurisdiction of the State Department of Education, but it does not include a vocational or professional institution or an institution of higher education, including a community or junior college, college, or university.

10. "Self-service merchandising" means open display of tobacco products and point-of-sale tobacco-related promotional products that the public has access to without the intervention of an employee.

11. "Tobacco product" means: (1) any product containing tobacco leaf including, but not limited to, cigarettes, cigars, pipe tobacco, hookah tobacco, snuff, chewing tobacco, dipping tobacco, bidis, or any other preparation of tobacco; and (2) any product or formulation of matter containing biologically active amounts of nicotine that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human lungs or mouth; (3) any electronic vapor device, electronic vapor inhalation substance, and hookah; (4) any plant, weed, or plant product that is manufactured, sold, offered for sale, or otherwise distributed with the expectation that the product or matter will be introduced into the human lungs or mouth in smoke or vapor form, using any tobacco paraphernalia as defined in Chapter 8.33 of this code, but does not include any product specifically approved by the United States Food and Drug Administration for use in treating nicotine or tobacco dependence.

12. "Tobacco retailer" means any person or governmental entity that operates a store, stand, booth, concession, or other place at which sales, rentals, or other give-aways of tobacco products, electronic vapor devices, electronic vapor inhalation substances, and hookahs are made to purchasers for consumption or use.

13. "Tobacco or smoke shop" means any store, stand, booth, concession, or other place that either devote at least ten percent or more of floor space of its display area, for the display or sale of tobacco or drug paraphernalia to purchasers for consumption or use. This definition includes electronic vapor devices, electronic vapor inhalation substances and hookahs.

14. "Tobacco vending machine" means any electronic or mechanical device or appliance the operation of which depends upon the insertion of money, whether in coin or paper currency, or other things representative of value, that dispenses or releases a tobacco product.

D. Development Standards.

1. The tobacco or smoke shop, electronic/vapor substance inhalation shop or hookah bar shall be located within the following permitted zones, the C-1 neighborhood commercial zone, the C-2 commercial zone, the H-C highway commercial zone, the M-1 light industrial zone, and the M-2 medium industrial zone. No such establishment shall be permitted to locate in any area outside such zoning classifications.

2. The tobacco or smoke shop, electronic/vapor substance inhalation shop or hookah bar shall meet the following minimum spacing and proximity requirements:

a. No tobacco or smoke shop, electronic/vapor substance inhalation shop or hookah bar shall be located within one thousand feet of any other such shop.

b. No tobacco or smoke shop, electronic/vapor substance inhalation shop or hookah bar shall be located within five hundred feet of any parcel of land that contains any one or more of the following specific land uses:

i. Church or other religious facility;

ii. Child care center;

iii. Public playground/park/recreation area;

iv. School.

3. No tobacco or smoke shop, electronic/vapor substance inhalation shop or hookah bar located in a building sharing one or more common walls with another retail or commercial establishment, or sharing common attic space with any other use, shall permit smoking anywhere on the premises.

4. The tobacco or smoke shop, electronic/vapor substance inhalation shop or hookah bar shall be in substantial compliance with the requirements of all health and safety codes, including, but not limited to, the building code, fire code, electrical code, mechanical code and plumbing code. Substantial compliance shall be verified no later than thirty days following the application or the applicant shall be deemed not to be in substantial compliance with such requirements for the purposes of permit issuance.

5. The tobacco or smoke shop, electronic/vapor substance inhalation shop or hookah bar shall be in substantial compliance with the development standards for the commercial zone in which the establishment is to be located, and with the general provisions of Chapter 17.134 of the McFarland Municipal Code (MMC) relating to development standards and of Chapter 17.142 of the MMC relating to sign regulations, except that, to the extent that provisions of this chapter may conflict or be more restrictive, this chapter shall control.

6. The tobacco or smoke shop, electronic/vapor substance inhalation shop or hookah bar shall meet the following minimum specific standards:

a. No person or business shall engage in the sale of tobacco and electronic vapor device products without first posting a plainly visible sign at the point of purchase of tobacco products that has wording similar to:

"THE SALE OF TOBACCO PRODUCTS, HOOKAHS, AND ELECTRONIC VAPOR DEVICES AND PRODUCTS TO PERSONS UNDER 18 YEARS OF AGE IS PROHIBITED BY LAW AND SUBJECT TO PENALTIES. PHOTO IDENTIFICATION IS REQUIRED OF PURCHASERS APPEARING TO BE 26 YEARS OF AGE AND YOUNGER."

The letters of the sign shall be at least one-quarter inch high.

b. No person, business, tobacco retailer or other establishment shall sell or offer for sale cigarettes or other tobacco or smoking products not in the original packaging provided by the manufacturer and with all required health warnings.

c. It shall be unlawful for any person, business or tobacco retailer to sell, permit to be sold, offer for sale or display for sale any tobacco product by means of self-service merchandising or by means other than vendor-assisted sales.

d. No person, business or tobacco retailer shall locate, install, keep, maintain, or use, or permit the location, installation, keeping, maintenance, or use on his, her or its premises, any tobacco vending machine for the purpose of selling or distributing any tobacco product.

e. It shall be unlawful for any person, business or tobacco retailer to distribute free tobacco products or promotional items, except in enclosed areas where minors are not permitted.

E. Distance, without regard to intervening structures, shall be:

1. A straight line measured from the closest exterior structural wall of any two tobacco retailers; and

2. A straight line measured from the closest exterior structural wall of a tobacco retailer to the closest property line of a church or other religious facility, child care center, public playground/park/recreation area, school or vocational or professional institution.

(Ord. No. 079-2017, § 1, 12-14-17)

The city of McFarland may enforce any provision of this chapter by mandamus, injunction or any appropriate civil remedy in any court of competent jurisdiction.

(Ord. No. 001-2009, § 1, 6-11-09)

Every section, provision or part of this chapter is declared separable from every other section, provision or part of this chapter. If any section, provision or part of this chapter is adjudged to be invalid by a court of competent jurisdiction, such judgment shall not invalidate any other section, provision, or part of this chapter.

(Ord. No. 001-2009, § 1, 6-11-09)