Montclair Municipal Code § 11.40.060 Amortization schedule of nonconforming adult-oriented businesses

It is the purpose and intent of this chapter to regulate the operations of adult 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 businesses; decreases in property values in the vicinity of adult businesses; increases in vacancies in residential and commercial areas in the vicinity of adult businesses; interference with residential property owners' enjoyment of their properties when such properties are located in the vicinity of adult 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 businesses, while at the same time protecting the First Amendment rights of those individuals who desire to own, operate or patronize adult businesses.

(Ord. 06-873 § 2(a))

The provisions of this chapter shall apply to all adult-oriented businesses in C-3, M-1 and M-2 zoned properties subject to review and approval by the City for conformance with development standards.

(Ord. 99-791 Exh. A (part); prior code § 9-6.401)

In addition to any other definitions contained in the Municipal Code, the following words and phrases shall, for the purpose of this chapter and Chapters 4.52 and 4.53, 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.

Adult arcade means 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."

Adult booth/individual viewing area means a partitioned or partially enclosed portion of an adult 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";

2. Where "adult arcade devices" are located.

Adult business means:

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, or adult modeling studio;

2. A business establishment or concern that, 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.

Adult cabaret means a business establishment (whether or not serving alcoholic beverages) that features "adult live entertainment."

Adult cabaret dancer means 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.

Adult hotel/motel means 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."

Adult live entertainment means 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.

Adult modeling studio means 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.

Adult motion picture theater means 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 are characterized by the depiction or description of "specified sexual activities" or "specified anatomical areas."

Adult-oriented material means 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."

Adult retail store means a business establishment having as a regular and substantial portion of its stock in trade "adult-oriented material."

Establishment of an adult business means any of the following:

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

2. The conversion of an existing business, whether or not an "adult business," to any "adult business";

3. The addition of any "adult business" to any other existing "adult business";

4. The relocation of any "adult business";

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

Owner/license holder means any of the following: (1) the sole proprietor of an adult business; (2) any general partner of a partnership that owns and operates an adult business; (3) the owner of a controlling interest in a corporation or limited liability corporation (LLC) that owns and operates an adult business; or (4) the person designated by the officers of a corporation or the members of an LLC to be the license holder for an adult business owned and operated by the corporation.

Performer means a person who is an employee or independent contractor of an adult business or any other person who, with or without any compensation or other form of consideration, provides "adult live entertainment" for patrons of an "adult business."

Sexually oriented merchandise means 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."

Specified anatomical areas means and includes 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:

a. Genitals, pubic region,

b. Buttocks, anus,

c. Female breasts below a point immediately above the top of the areola;

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

Specified sexual activities means and includes 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;

2. Acts of human masturbation, sexual stimulation, or arousal;

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

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

5. Human excretion, urination, menstruation, vaginal or anal irrigation;

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

(Ord. 06-873 § 2(b))

A. Adult-oriented businesses shall only be permitted within the C-3, MIP, M-1 and M-2 zoning districts within the City.

B. The designated areas within the C-3, MIP, M-1 and M-2 zoned areas upon which adult-oriented businesses may be located is described herein as the following areas within the incorporated City limits:

An area bounded on the north side by Brooks Street and the extension of Brooks Street; on the east by a line 600 feet parallel to and west of Central Avenue; on the south by a line 600 feet south of and parallel to State Street, except those areas presently within the unincorporated area of the County of San Bernardino; and on the west by the City limits in the area south of State Street and by the San Antonio Flood Control easement in the area north of State Street; also excluded are properties located within 300 feet east or west from the right-of-way lines of Ramona and Monte Vista Avenues.

(Prior code § 9-6.403)

A. Any adult-oriented business which becomes nonconforming after the effective date of the ordinance codified in this chapter shall be granted an amortization schedule to continue business operation for a period not to exceed two years from the effective date of the ordinance codified in this chapter.

B. Any adult-oriented business located in any territory annexed to the City shall comply with the provisions of this chapter. If such use is found to be nonconforming to this chapter at the time of annexation, the two-year amortization schedule shall begin on the effective date of such annexation.

C. The Director of Community Development shall cause official notification to be sent to the legal property owner of record as it appears on the County tax roll by U.S. registered mail, stating the nonconforming status of such adult-oriented business on the property as well as the start of the amortization schedule. If the operator of such business is different from that of the legal property owner, additional notification shall be sent to the business operator by U.S. registered mail.

D. No legal nonconforming adult business shall be allowed to be expanded, enlarged, modified, relocated or converted into another adult use without first securing an adult business license from the Director of Community Development in accordance with Chapter 4.53 of this Code.

E. Should any legal nonconforming adult-oriented business cease operation for a period exceeding six consecutive months within the two-year amortization period, said use shall be deemed to forfeit its legal nonconforming status and shall not be continued or reopened at said location.

F. Upon the conclusion of the two-year amortization schedule, any legal nonconforming adult-oriented business shall cease all business operation and shall remove all signs, advertising and displays relating to said business within 30 days of City notification.

(Ord. 06-873 § 2(d); Ord. 99-791 Exh. A (part); prior code § 9-6.405)