Modesto Municipal Code Art. 1 General Provisions

It is the purpose and intent of this chapter to regulate the operations of adult-oriented businesses, which tend to have judicially recognized adverse secondary effects on the community, including, but not limited to, increases in crime in the vicinity of adult-oriented businesses; increases in vacancies in residential and commercial areas in the vicinity of adult-oriented businesses; interference with residential property owners' enjoyment of their properties when such properties are located in the vicinity of adult-oriented businesses as a result of increases in crime, litter, noise, and vandalism; and the deterioration of neighborhoods. Special regulation of these businesses is necessary to prevent these adverse secondary effects and the blighting or degradation of the neighborhoods in the vicinity of adult-oriented businesses while at the same time protecting the First Amendment rights of those individuals who desire to own, operate, or patronize adult-oriented businesses.

It is, therefore, the purpose of this chapter to establish reasonable and uniform operational standards for adult-oriented businesses.

(Ord. 3778-C.S, § 2, effective 6-6-24)

In addition to any other definitions contained in the Municipal Code, the following words and phrases shall, for the purpose of this chapter, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with any current provisions of the Municipal Code, these definitions shall prevail.

(a) "Adult arcade" shall mean a business establishment to which the public is permitted or invited and where coin, card or slug operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing "specified sexual activities" or "specified anatomical areas." Such devices shall be referred to as "adult arcade devices."

(b) "Adult booth/individual viewing area" shall mean a partitioned or partially enclosed portion of an adult-oriented business used for any of the following purposes:

(1) Where a live or taped performance is presented or viewed, where the performances and/or images displayed or presented are distinguished or characterized by their emphasis on matter depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas;" or

(2) Where "adult arcade devices" are located.

(c) "Adult-oriented business" is synonymous with "adult entertainment business" and shall mean:

(1) A business establishment or concern that as a regular and substantial course of conduct operates as an adult retail store, adult motion picture theater, adult arcade, adult cabaret, adult motel or hotel, adult modeling studio; or

(2) A business establishment or concern which as a regular and substantial course of conduct offers, sells or distributes "adult-oriented material" or "sexually oriented merchandise," or which offers to its patrons materials, products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing, or relating to "specified sexual activities" or "specified anatomical areas" but not including those uses or activities which are preempted by State law.

(d) "Adult cabaret" shall mean a business establishment (whether or not serving alcoholic beverages) that features "Adult live entertainment."

(e) "Adult cabaret dancer" shall mean any person who is an employee or independent contractor of an "Adult cabaret" or "Adult business" and who, with or without any compensation or other form of consideration, performs as a sexually oriented dancer, exotic dancer, stripper, go-go dancer or similar dancer whose performance on a regular and substantial basis focuses on or emphasizes the adult cabaret dancer's breasts, genitals, and/or buttocks, but does not involve exposure of "specified anatomical areas" or depicting or engaging in "specified sexual activities." "Adult cabaret dancer" does not include a patron.

(f) "Adult hotel/motel" shall mean a "hotel" or "motel" (as defined in the Municipal Code) that is used for presenting on a regular and substantial basis images through closed circuit television, cable television, still or motion picture machines, projectors, videos, holograms, virtual reality devices or other image-producing devices that are distinguished or characterized by the emphasis on matter depicting or describing or relating to "specified sexual activities" or "specified anatomical areas."

(g) "Adult live entertainment" shall mean any physical human body activity, whether performed or engaged in, alone or with other persons including, but not limited to, singing, walking, speaking, dancing, acting, posing, simulating, wrestling or pantomiming, in which: (1) the performer (including, but not limited to, topless and/or bottomless dancers, go-go dancers, exotic dancers, strippers, or similar performers) exposes to public view, without opaque covering, "specified anatomical areas;" and/or (2) the performance or physical human body activity depicts, describes, or relates to "specified sexual activities" whether or not the specified anatomical areas are covered.

(h) "Adult modeling studio" shall mean a business establishment which provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays "specified anatomical areas" to be observed, sketched, photographed, filmed, painted, sculpted, or otherwise depicted by persons paying for such services. "Adult modeling studio" does not include schools maintained pursuant to standards set by the Board of Education of the State of California.

(i) "Adult motion picture theater" shall mean a business establishment, with or without a stage or proscenium, where, on a regular and substantial basis and for any form of consideration, material is presented through films, motion pictures, video cassettes, slides, laser disks, digital video disks, holograms, virtual reality devices, or similar electronically-generated reproductions that is characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

(j) "Adult-oriented material" shall mean accessories, paraphernalia, books, magazines, laser disks, compact discs, digital video disks, photographs, prints, drawings, paintings, motion pictures, pamphlets, videos, slides, tapes, holograms or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas." "Adult oriented material" shall include "sexually oriented merchandise."

(k) "Adult retail store" shall mean a business establishment having as a regular and substantial portion of its stock in trade, "Adult-oriented material."

(l) "Establishment of an adult-oriented business" shall mean any of the following:

(1) The opening or commencement of any "adult-oriented business" (as defined above) as a new business;

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

(3) The addition of any "adult-oriented business" to any other existing "adult-oriented business;"

(4) The relocation of any "adult-oriented business;" or

(5) Physical changes that expand the square footage of an existing "adult-oriented business" by more than ten (10) percent.

(m) "Non-performer" shall mean a person who is an employee or independent contractor of an adult-oriented business who works in that adult-oriented business during regular business hours. This shall not include after-hours workers providing janitorial, trash or similar after hours services.

(n) "Owner/permit holder" shall mean any of the following: (1) the sole proprietor of an adult-oriented business; (2) any general partner of a partnership that owns and operates an adult-oriented business; (3) the owner of a controlling interest in a corporation or L.L.C. that owns and operates an adult-oriented business; or (4) the person designated by the officers of a corporation or the members of an L.L.C. to be the permit holder for an adult-oriented business owned and operated by the corporation.

(o) "Performer" shall mean a person who is an employee or independent contractor of an adult-oriented business or any other person who, with or without any compensation or other form of consideration, provides "adult-oriented live entertainment" for patrons of an "adult-oriented business."

(p) "Religious facility" shall mean a structure or facility that is used primarily for religious worship and related religious activities.

(q) "School" shall mean any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and/or which is maintained pursuant to standards set by the Board of Education of the State of California. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education under the jurisdiction of the California Department of Education. For the purposes of this chapter, "school" does not include a vocational or professional institution of higher education, including a community or junior college, college, or university.

(r) "Sexually oriented merchandise" shall mean sexually oriented implements, paraphernalia, or novelty items such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity or distinguished or characterized by their emphasis on matter depicting, describing or relating to "specified sexual activities" or "specified anatomical areas."

(s) "Specified anatomical areas" shall mean and include any of the following:

(1) Less than completely and opaquely covered, and/or simulated to be reasonably anatomically correct, even if completely and opaquely covered human:

(i) Genitals, pubic region;

(ii) Buttocks, anus; or

(iii) Female breasts below a point immediately above the top of the areola; or

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

(t) "Specified sexual activities" shall mean and include any of the following, irrespective of whether performed directly or indirectly through clothing or other covering:

(1) Human genitals in a state of sexual stimulation or arousal; and/or

(2) Acts of human masturbation, sexual stimulation or arousal; and/or

(3) Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; and/or

(4) Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, or bondage and/or restraints; and/or

(5) Human excretion, urination, menstruation, vaginal or anal irrigation; and/or

(6) Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.

(Ord. 3778-C.S, § 2, effective 6-6-24)

(a) All adult-oriented businesses are subject to the adult-oriented business regulatory permit requirements, the adult-oriented business performer permit requirements, the adult-oriented business non-performer permit and/or other permit requirements of this chapter as well as all other applicable ordinances of the City and the laws of the State of California.

(b) It shall be unlawful for any person to establish, operate, engage in, conduct, or carry on any adult-oriented business within Modesto unless the person first obtains, and continues to maintain in full force and effect all required permits, including but not limited to an adult-oriented business regulatory permit.

(c) Any occurrence of the "establishment of an adult-oriented business," as defined in this chapter, shall require a new application for an adult-oriented business regulatory permit and any other applicable permits under this chapter.

(d) All permit requirements under this chapter shall be subject to the development and operational standards of this chapter and the underlying zone where the facility is located.

(Ord. 3778-C.S, § 2, effective 6-6-24)