Merced Municipal Code Art. 1 General Provisions

It is the purpose of this ordinance 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 ordinance have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the first amendment, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this ordinance to condone or legitimize the distribution of obscene material.

(Ord. 1984 § 3 (part), 1998).

For the purpose of this chapter, the following words and phrases shall have the meanings respectively ascribed to them by this section:

A. Adult entertainment businesses. "Adult entertainment businesses" means any one of the following:

(1) 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, slide projectors, or similar machines, for viewing by five (5) or fewer persons each, are used to show films, computer generated images, motion pictures, video cassettes, slides or other photographic reproductions thirty (30) percent or more of the number of which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(2) Adult bookstore. The term "adult bookstore," as used in this chapter, is an establishment that has thirty (30) percent or more of its stock in books, magazines, periodicals or other printed matter, or of photographs, films, motion pictures, video cassettes, slides, tapes, records or other form of visual or audio representations which are characterized or distinguished by an emphasis upon the depiction or description of specified sexual activities and/or specified anatomical areas.

(3) Adult cabaret. The term "adult cabaret," as used in this chapter, means a nightclub, restaurant, or similar business establishment which regularly features live performances thirty (30) percent or more of the number of which are characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities, or films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30) percent or more of the number of which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(4) Adult hotel/motel. The term "adult hotel/motel," as used in this chapter, means a hotel or motel or similar business establishment offering public accommodations for any form of consideration which, (1) provides patrons with closed-circuit television transmissions, films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30) percent or more of the number of which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and (2) rents, leases, or lets any room for less than a six (b) hour period, or rents, leases, or lets any single room more than twice in a 24-hour period.

5. 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 thirty (30) percent or more of the number of which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

6. 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 features live performances thirty (30) percent or more of the number of which are characterized by an emphasis on the display of specified anatomical areas or specified sexual activities.

7. Escort bureau. The term "escort bureau," as used in this chapter, means a business which, for pecuniary compensation, consideration, hire or reward furnishes or offers to furnish escorts.

8. Modeling studio. The term "modeling studio," as used in this chapter, means a business which provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purpose 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."

B. Adult entertainment business operator. "Adult entertainment 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 entertainment business or the conduct or activities occurring on the premises hereof.

C. Applicant. 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 entertainment business."

D. Bar. For the purposes of this chapter, a bar is defined as any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises.

E. Distinguished or characterized by an emphasis upon. As used in this ordinance, 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 Pringle v. City of Covina, 115 Cal.App.3d 151 (1981).

F. Escort. "Escort" means a person who, for pecuniary compensation, monetary or other consideration, hire or reward, (i) escorts or accompanies others to or about social affairs, entertainment or places of amusement, or (ii) keeps company with others about any place or public resort or within any private quarters, or (iii) who agrees or offers to privately model lingerie or to privately perform a striptease for another person, or (iv) who agrees to provide any service which is distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities.

G. Figure model. "Figure model" 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.

H. Health officer. The police chief of the City of Merced or his or her duly authorized representative.

I. Nudity or a state of nudity. "Nudity or a state of nudity" 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 nipple, or the showing of the covered male genitals in a discernible turgid state.

J. Operate an adult entertainment business. As used in this article "operate an adult entertainment 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 entertainment business or activities within an adult entertainment business.

K. Permittee. "Permittee" means the person to whom an adult entertainment business permit is issued.

L. Person. Any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

M. Police chief. The chief of the City of Merced or the authorized representatives thereof.

N. 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 (2) or more occasions within a thirty (30) day period; three (3) or more occasions within a sixty (60) day period; or four (4) or more occasions within a one hundred and eighty (180) day period shall, to the extent permitted by law, be deemed to be a regular and substantial course of conduct.

O. 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.

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

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

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

Q. Specified sexual activities. As used herein, "specified sexual activities" shall mean and include any of the following:

(1) The fondling or other erotic touching of human genitals, public region, buttocks, anus, or female breast;

(2) Sex acts, actual or simulated, including intercourse, oral copulation, or sodomy;

(3) Masturbation, actual or simulated;

(4) Excretory functions as part of or in connection with any of the other activities described in subdivision (1) through (3) of this subsection.

(Ord. 1984 § 3 (part), 1998).

A. It shall be unlawful for any person to engage in, conduct or carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the City of Merced, the operation of an adult entertainment business unless the person first obtains and continues to maintain in full force and effect a permit from the City of Merced as herein required. (Adult Business Regulatory Permit).

B. It shall be unlawful for any persons to engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an adult entertainment business unless the person first obtains and continues in full force and effect a permit from the City of Merced as herein required. (Adult Entertainment Business Performer Permit).

C. It shall be unlawful for any person to act as an escort, figure model, or to take any other position of employment with an escort bureau or modeling studio in the City of Merced unless the person first obtains and continues to maintain in full force and effect a permit from the City of Merced as herein required. (Escort Permit, Figure Model Permit).

(Ord. 1984 § 3 (part), 1998).