Chapter 5.50 — ADULT-ORIENTED BUSINESSES

(a)

The intent of this chapter is to regulate adult-oriented businesses which, because of their very nature, are believed to have any of the recognized significant secondary effects on the community, which include, but are not limited to, depreciated property values and increased vacancies in residential and commercial areas in the vicinity of the adult-oriented businesses; higher crime rates, noise, debris or vandalism in the vicinity of adult-oriented businesses; and blighting conditions such as low level maintenance of commercial premises and parking lots which thereby have a deleterious effect upon adjacent areas. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the neighborhoods in the vicinity of the adult-oriented businesses. It is neither the intent, nor effect of this chapter to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent, nor effect of this chapter to restrict or deny access by adults to sexually- oriented materials or merchandise protected by the First Amendment, or to deny access by the distributors or exhibitors of adult-oriented business to their intended market.

(b)

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 statute of the state regarding public nuisances, unlawful exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof.

(Code 1972, § 5.50.005; Ord. No. 1007, § 2(part), 1995)

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

Adult bookstore means any establishment, which as a regular and substantial course of conduct, displays and/or distributes adult merchandise, books, periodicals, magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films, or other written, oral or visual representations which are distinguished or characterized by an emphasis on a matter depicting, describing or relating to specified sexual activities or specified anatomical parts. (See Adult-oriented business for definition of regular and substantial portion of its business.)

Adult cabaret means a nightclub, bar, lounge, restaurant or similar establishment or concern which features as a regular and substantial course of conduct, any type of live entertainment, films, motion pictures, videos, slides, other photographic reproductions, or other oral, written or visual representations which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

Adult hotel/motel means a hotel or motel, which as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed-circuit television or other medium, material which is distinguished or characterized by the emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts and/or which rents, leases or lets any room for

less than a 12-hour period and/or rents, leases or lets any room more than once in a 24-hour period and/or which advertises the availability of any of the above.

Adult model studio means any 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 parts where such model is being observed or viewed by any person for the purpose of being sketched, painted, drawn, sculptured, photographed, filmed or videotaped for a fee, or any other thing of value, as a consideration, compensation or gratuity for the right or opportunity to so observe the model or remain on the premises. The term "adult model studio" shall 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 under section 94300 et seq. of the Education Code.

Adult motion picture arcade means any business establishment or concern containing coin- or slug- operated or manually or electronically controlled still, motion picture or video machines, projectors, or other image-producing devices that are maintained to display images to an individual in individual viewing areas when those images are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

Adult-oriented business means any business establishment or concern which as a regular and substantial course of conduct performs as an adult bookstore, adult theater, adult motion picture arcade, adult cabaret, stripper, adult model studio or adult hotel/motel (but not clothing optional hotel/motel); any business establishment or concern which as a regular and substantial course of conduct sells or distributes 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 parts. The term "adult-oriented business" does not include those uses or activities, the regulation of which is preempted by state law. The term "adult-oriented business" shall also include any business establishment or concern which, as a regular and substantial course of conduct provides or allows performers, models, actors, actresses or employees to appear in any place in attire which does not opaquely cover specified anatomical parts. 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 parts as a regular and substantial course of conduct when one or more of the following conditions exist:

(1)

The area devoted to adult merchandise and/or sexually oriented material exceeds more than 25 percent of the total display or floor space area open to the public;

(2)

The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on specified sexual activities or specified anatomical parts at least six times in any month in any given year;

(3)

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 parts.

Adult theater means a business establishment or concern which, as a regular and substantial course of conduct, presents live entertainment, motion pictures, videos, slide photographs, or other pictures or visual reproductions which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

Live art class 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 parts; instruction is offered in a series of at least two 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.

Sexually oriented material means any element of sexually oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, or other written, oral or visual representation or presentation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter depicting, describing or relating to specific sexual activities or specified anatomical parts.

Sexually oriented merchandise means sexually oriented implements and paraphernalia, such as, but not limited to, dildos, auto sucks, sexually oriented vibrators, edible underwear, 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.

Specified anatomical parts means:

(1)

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

(2)

Human male genitals in a discernible turgid state, even if completely and opaquely covered.

Specified sexual activities means:

(1)

Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed 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;

(2)

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

(3)

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

(4)

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

(5)

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

(6)

Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being;

(7)

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

(8)

Striptease or the removal of clothing to the point where specified anatomical parts are not opaquely covered.

(Code 1972, § 5.50.010; Ord. No. 1007, § 2(part), 1995)

No adult-oriented business shall be permitted to operate, engage in, conduct or carry on business within the city unless the owner of the business first obtains both an adult-oriented business permit and a business license from the city. If an adult-oriented business intends to serve alcoholic beverages, the business shall also be required to obtain a conditional use permit from the city for the service of the alcoholic beverages.

(Code 1972, § 5.50.015; Ord. No. 1007, § 2(part), 1995)

(a)

The property owner, or authorized agent of the property owner, is eligible to request an adult-oriented business permit. A single adult-oriented business permit shall suffice for the operation of any single adult- oriented business on any particular site or in any particular structure within the city.

(b)

The following information is required at the time an adult-oriented business permit is submitted to the community development department:

(1)

A completed adult-oriented business permit application signed by the property owner or authorized representative;

(2)

A nonrefundable deposit and/or fee as set forth by resolution of the city council;

(3)

A letter of justification describing the proposed project and explaining how it will comply with the findings/requirements contained in section 5.50.025;

(4)

All other information as required by city adult-oriented business permit information sheet.

(Code 1972, § 5.50.020; Ord. No. 1007, § 2(part), 1995)

(a)

The city director of planning and community development shall issue an adult-oriented business permit within 45 days of receipt of a complete application if it finds that:

(1)

The adult-oriented business shall be located in the city's M-2 zoning district.

(2)

The adult-oriented business shall not be located within 1,000 feet of any residential or commercial zone.

(3)

The adult-oriented business shall not be located within 1,000 feet of any lot upon which there is properly located a public park, school or religious institution. The distances shall be measured as provided in subsection (a)(2) of this section.

(4)

The adult-oriented business complies with the city's parking standards for the underlying use. Where no city parking standards exist for a particular underlying use, the applicant shall provide one space per occupant as based upon the maximum occupancy as determined by the building official.

(5)

The adult-oriented business shall not be located completely or partially within any mobile structure or pushcart.

(6)

The adult-oriented business shall not stage any special events, promotions, festivals, concerts or similar events which would increase the demand for parking beyond the approved number of spaces for the particular use or which would increase occupancy beyond the maximum building occupancy as determined by the fire marshal as required by law.

(7)

The adult-oriented business shall not conduct any massage, acupuncture, tattooing, acupressure, fortunetelling or escort services on the premises.

(8)

The adult-oriented business shall provide a security system that visually records and monitors all parking lot areas. All indoor areas of the adult-oriented business shall be open to public view at all times with the exception of restroom facilities. The term "accessible to the public" shall include, but not be limited to, those areas which are only accessible to members of the public who pay a fee and/or join a private club or organization.

(9)

The adult-oriented business complies with the city's sign regulations.

(10)

The adult-oriented business complies with the development and design requirements of the zone in which it is to be located.

(11)

The adult-oriented business shall not display any sexually oriented material, sexually oriented merchandise or display which would be visible from any location other than from within the adult-oriented business.

(12)

The adult-oriented business shall not allow admittance to any person under the age of 18 if no liquor is served, or under the age of 21 if liquor is served.

(13)

The adult-oriented business shall not operate between the hours of 12:00 midnight and 10:00 a.m.

(14)

Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, of the adult-oriented business have been found guilty within the past two years of a

misdemeanor or felony classified by the state as a sex-related offense and have not violated any of the provisions of an adult-oriented business permit or similar permit or license in any city, county, territory or state.

(15)

The adult-oriented business shall provide separate restroom facilities for male and female patrons. The restrooms shall be free from sexually oriented materials and sexually oriented merchandise. Only one person shall be allowed in the restroom at any time, unless otherwise required by law, in which case the adult-oriented business shall employ a restroom attendant of the same sex as the restroom users who shall be present in the restroom during operating hours. The attendant shall prevent any person from engaging in any specified sexual activities within the restroom and shall ensure that no person of the opposite sex is permitted in the restroom.

(16)

The interior of the adult-oriented business shall be configured such that there is an unobstructed view, unassisted by camera, video surveillance, or other equipment or materials, of every public area of the premises, including, but not limited to, the interior of all individual viewing areas, from a manager's station which is no larger than 32 square feet of floor area with no single dimension being greater than eight feet in a public portion of the establishment. No public area, including, but not limited to, the interior of any individual viewing area, shall be obscured by any door, curtain, wall, two-way mirror or other device which would prohibit a person from seeing into the interior of the individual viewing area from the manager's station. A manager shall be stationed in the manager's station at all times the business is in operation or open to the public in order to enforce all rules and regulations. No individual viewing area shall be designed or operated to permit occupancy of more than one person at a time. The term "individual viewing area" means any area designed for occupancy of one person for the purpose of viewing live performances, pictures, movies, videos or other presentations.

(17)

All areas of the adult-oriented business shall be illuminated at a minimum of five foot-candles, minimally maintained and evenly distributed at ground level.

(18)

The individual viewing areas of the adult-oriented business shall be operated and maintained with no holes, openings or other means of direct visual or physical access between the interior space of two or more individual viewing areas.

(19)

A traffic study has been prepared for the adult-oriented business in conformance with the city's traffic study guidelines. The applicant shall demonstrate that the project will not result in a reduction in any roadway level of service below that level of service designated in the general plan for that roadway. If the applicant so desires, rather than be denied the permit, the applicant may elect to construct the requisite street improvements determined by the city's traffic engineer to be necessary to allow the project to

operate without reducing the level of service below that level designated in the city's general plan for that roadway.

(20)

The adult-oriented business shall comply with the noise element of the general plan, interior and exterior noise standards and any mitigation measures necessary to reduce the project's noise impacts to the city's articulated noise standard.

(21)

The adult-oriented business shall comply with all building and construction standards of the Uniform Building Code, title 24 of the California Code of Regulations, and all other federal, state and city-adopted standards for the specific use.

(22)

Whenever live entertainment is provided, patrons shall be physically separated from performers by a buffer zone of at least six feet. The term "live entertainment," for the purposes of this requirement, means any existing display by a human being which is characterized by an emphasis on specified anatomical parts or specified sexual activities. This provision shall not apply to an individual viewing area where the stage is completely separated from the individual viewing area by a floor to ceiling permanent, solid barrier.

(23)

No building, premises, structure, or other facility shall be permitted to contain more than one type of adult- oriented business as such types of adult-oriented business are defined in section 5.50.010. For the purposes of this section, the catch-all phrase "adult-oriented business" shall not be considered a single type of adult-oriented business.

(24)

No individual viewing area may be occupied by more than one person at any one time.

(25)

No patron shall directly or indirectly pay or give any gratuity to any performer and no performer shall solicit or accept any gratuity from any patron.

(b)

The city director of planning and community development shall deny the requested permit if the above findings have not been made.

(Code 1972, § 5.50.025; Ord. No. 1007, § 2(part), 1995)

Editor's note— The distance of separation required by findings (a)(2) and (a)(3) shall be made using a straight line, without regard to intervening structures or objects, from the property line of the lot on which the adult-oriented business shall be located to the nearest property line of the lot upon which is located a residential use, religious institution, park or school from which the measurement is being taken. Where the

sensitive receptor site is located on the same lot as the adult-oriented business, the distance between the two shall be measured in a straight line between the front doors of each use without regard to intervening structures or objects.

An adult-oriented business permit shall be valid for a period of one year from the date of issuance.

(Code 1972, § 5.50.030; Ord. No. 1007, § 2(part), 1995)

An adult-oriented business permit shall be renewed on a year-to-year basis provided that the permittee and the adult-oriented business continues to meet the requirements set forth in this chapter. A request for permit renewal must be accompanied by a completed adult-oriented business permit application. If said application conforms to the previously approved application and the adult-oriented business has not changed, the permit shall be renewed by the director of planning and community development for another year. Any change or alteration in the nature or operation of the adult-oriented business will require the renewal to be reviewed by the director of planning and community development. The renewal fee for an adult-oriented business permit shall be established by ordinance or resolution of the city council.

(Code 1972, § 5.50.035; Ord. No. 1007, § 2(part), 1995)

No adult-oriented business permit may be sold, transferred or assigned by any permittee or by operation of law, to any other person, group, partnership, corporation or any other entity. Any such sale, transfer or assignment or attempted sale, transfer or assignment shall be deemed to constitute a voluntary surrender of the permit and the permit shall be thereafter null and void. An adult-oriented business permit held by a corporation or partnership is subject to the same rules of transferability as contained above. Any change in the nature or composition of the adult-oriented business from one element of an adult-oriented business to another element of an adult-oriented business shall also render the permit null and void. An adult-oriented business permit shall only be valid for the exact location specified on the permit.

(Code 1972, § 5.50.040; Ord. No. 1007, § 2(part), 1995)

(a)

Inspections. The permittee shall permit officers of the city, the county, and each of their authorized representatives to conduct unscheduled inspections of the premises of the adult-oriented business for the purpose of ensuring compliance with the law at any time the adult-oriented business is open for business or occupied.

(b)

Revocation grounds. The director of planning and community development may revoke an adult-oriented business permit when he discovers that any of the following have occurred:

(1)

Any of the findings contained in section 5.50.025 ceases to be satisfied;

(2)

The application contains incorrect, false or misleading information;

(3)

The applicant is convicted of any felony or misdemeanor which is classified as a sex or sex-related offense, any violation of the city's zoning ordinance, any violation of the city's massage ordinance, or any violation of any other adult business ordinance of any other city, county or state;

(4)

Individual viewing areas are being operated with more than one occupant at any one time, or are being maintained with holes, openings or other means of direct visual access between the interior space of two or more individual viewing areas. For the purpose of this section, "individual viewing area" means a viewing area designed for single occupancy;

(5)

Any person has been convicted of a sex-related offense as a result of his activity on the premises of the adult-oriented business; or

(6)

Any person or persons has engaged in any specified sexual activities on the premises.

(c)

Revocation notice. Upon determining that the grounds for permit revocation exist, the director of planning and community development shall furnish written notice of the proposed revocation to the permittee. Such notice shall summarize the principal reasons for the proposed revocation and shall state that the permittee may appeal the decision within 15 calendar days of the posting or the postmarked date on the notice. The notice shall be delivered both by posting the notice at the location of the adult-oriented business and by sending the same, certified mail, return receipt requested and postage prepaid, to the permittee as that name and address appears on the permit. Not later than 15 calendar days after the later of the mailing or posting of the notice, the permittee may file an appeal of the director of planning and community development's determination with the city clerk. If the appeal is filed within 15 calendar days of the mailing or posting of the notice referenced above, the appeal hearing shall be provided as contained in subsection (d) of this section.

(d)

Reapplication after revocation. No person, corporation, partnership or member thereof or any other entity may obtain an adult-oriented business permit for a business for a five-year period once its permit has been revoked.

(Code 1972, § 5.50.045; Ord. No. 1007, § 2(part), 1995)

(a)

Every person, whether acting as an individual owner, employee of the owner, permittee, or operator or employee of the permittee, or whether acting as a mere helper for the owner, permittee, employer or operator, or whether acting as a participant or worker in any way, who operates or conducts or who participates in the operation of an unpermitted adult-oriented business, or who violates any provisions of this chapter, including, but not limited to, any provision of section 5.50.025, shall be guilty of a misdemeanor and shall be fined not more than $1,000.00 for each offense or imprisoned for not more than six months in the county jail for each offense, or both. Each day the violation continues shall be regarded as a separate offense for which the full penalty may be imposed.

(b)

Any establishment operated, conducted or maintained contrary to the provisions of this chapter is unlawful and a public nuisance, and the city attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such adult-oriented business and restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this chapter.

(Code 1972, § 5.50.050; Ord. No. 1007, § 2(part), 1995)