San Clemente Municipal Code Ch. 5.12 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 insure 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 section to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent, nor effect of this section 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 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 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.

(Ord. 1127 § 3 (part), 1993)

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.

(Ord. 1127 § 3 (part), 1993)

A. Persons Eligible. .....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 adult-oriented business 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 or fee as set forth by ordinance or 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 5.12.050;

4. Information required for public hearings pursuant to Section 17.12.100 of this code;

5. All other information as required by the City adult-oriented business permit information sheet.

(Ord. 1127 § 3 (part), 1993)

A. Determination of Completeness. .....The City Manager or his or her designee shall, within seven (7) days of receipt of an application for an adult-oriented business, determine whether the application contains all the information required by the provisions of this Section 5.12.030. If it is determined that the application is not complete, the applicant shall be notified in writing within ten (10) business days of the date of receipt of the application that the application is not complete and the reasons therefor, including any additional information necessary to render the application complete. The applicant shall have thirty (30) calendar days to submit additional information to render the application complete. Failure to do so within the thirty (30) day period shall render the application null and void. Within five (5) business days following the receipt of an amended application or supplemental information, the City Manager or his or her designee shall again determine whether the application is complete in accordance with the procedures set forth above. Evaluation and notification shall occur as provided above until such time as the application is found to be complete. Once the application is found to be complete, the applicant shall be notified within five (5) business days of that fact. All notices required by this chapter shall be deemed given upon the date they are either deposited in the United States mail, or the date upon which personal service of such notice is provided.

B. Issuance of Permit. .....The City Manager shall issue an adult-oriented business permit within fifteen (15) calendar days of receipt of a completed application if he or she finds that the application fully complies with the findings/locational and operational requirements contained in Section 5.12.150. The applicant shall be notified within five (5) business days of the date the City Manager issues the adult-oriented business permit in the manner provided above. The decision of the City Manager to issue or deny a permit shall be final.

C. Prompt Judicial Review. .....Any applicant whose permit has been denied, pursuant to this chapter shall be afforded prompt judicial review of that decision as provided by Code of Civil Procedure Section 1094.8.

(Ord. 1239 § 1, 1999: Ord. 1127 § 3 (part), 1993)

The City Council shall issue an adult-oriented business permit if it finds that:

A. The adult-oriented business shall be located in the City's B.P., M-1 or M-2 zoning districts.*

B. An adult-oriented business shall not be located within one thousand (1,000) feet of any residentially zoned property or any residential use properly approved by the City.

C. The adult-oriented business shall not be located within one thousand (1,000) feet of any lot upon which there is properly located a religious institution, public park or school.*

D. 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 prepare a parking study for the use in question. The study shall demonstrate that the adult-oriented business for which the applicant is seeking approval provides adequate parking.

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

F. 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.

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

H. 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. "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.

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

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

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

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

M. The adult-oriented business shall not operate between the hours of ten (10:00) p.m. and seven (7:00) a.m.

N. Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, of the adult-oriented business shall have been found guilty within the past two years of violating any of the provisions of a adult-oriented business permit or similar permit or license in any city, county, territory or state, or of any misdemeanor or felony classified by the state as a sex-related offence including but not limited to a violation of the following penal code sections and their subparts and subsections: 220, 261, 262, 264, 264.1, 265, 266, (inc. 266a-266k) 267, 286, 286.5, 288, 288a, 289, 647, 647b, 647d, 647.6.

O. The adult-oriented business will provide separate restroom facilities for male and female patrons. The restroom will be free from adult-oriented materials and adult-oriented merchandise. Only one (1) person will be allowed in the restroom at any time unless otherwise required by law, in which case the adult-oriented business will employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant will insure that no person of the opposite sex is permitted into the restroom, that not more than one (1) person is permitted to enter a restroom stall, and, with the exception of urination and excretion, that no persons engage in any specified sexual activity in the public portion of the restroom.

P. The interior of the adult-oriented business will be configured such that there is an unobstructed view, by use of the naked eye, and unaided by video, closed circuit cameras or any other means, 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 thirty-two (32) square feet of floor area with no single dimension being greater than eight (8) feet and located in a public portion of the establishment. No public area, including but not limited to the interior of any individual viewing area, will 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, solely with the use of the naked eye and unaided by video, closed circuit cameras or any other means, from the manager's station. A manager will 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 will be designated or operated to permit occupancy of more than one person at any one time.

Q. All areas of adult-oriented businesses shall be illuminated at a minimum of the following foot candles, minimally maintained and equally distributed at ground level:

R. 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 (2) or more individual viewing areas.

S. A traffic study has been prepared for the adult-oriented business in conformance with the City's traffic study guidelines. The applicant shall comply with all applicable provisions of the City's RCFPP, Avenida La Pata Supplementary Road Fee Program, and all fees or improvements shown by the traffic study to be necessary to ensure the project does not cause the streets, highways, or arterials to exceed their approved level of service as that level of service is contained in the circulation element of the City's general plan. All required fees and improvements shall be made conditions of project approval.

T. 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.

U. The adult-oriented business shall comply with all building and construction standards of the Uniform Building Code, Chapter 15.08 of this code, Title 24 of the California Code of Regulations, and all other federal, state and City-adopted standards for the specific use.

V. Live entertainment will only be performed either: (a) on a stage raised at least eighteen inches (18″) above the floor and separated from patrons by a fixed rail at least thirty inches (30″) in height placed at a distance of not less than eight feet (8′) around the perimeter of the stage; or (b) in a location other than on a stage such that no portion of the performer is, at any time within six feet (6′) of any patron. This provision will not apply to an individual viewing area where the performer is completely separated from the area in which the performer is viewed by an individual by a permanent, floor to ceiling solid barrier which completely encases the performer.

W. No patron will directly pay or give any gratuity to any performer, and no performer will accept any direct payment from any patron. For the purposes of this section, the phrase "directly pay" shall mean the person to person transfer of the gratuity. This section shall not prohibit the establishment of a non-human gratuity receptacle placed at least six feet (6′) from the stage or area occupied by the performer.

X. No performer will intentionally have any physical contact with any patron and no patron will intentionally have any physical contact with any performer while on the premises of an adult- oriented business.

Y. At least one (1) security guard will be on duty outside the premises, patrolling the grounds at all times the business is open to the public. The security guard shall be charged with preventing violations of law and enforcing the provisions of this chapter. All security guards will be uniformed so as to be readily identifiable as a security guard by the public. No person acting as a security guard shall act as a doorman, ticket taker or seller, or perform any other function while acting as a security guard. For all adult-oriented businesses providing live entertainment, an additional security guard will be required with each increase in maximum occupancy of fifty (50) persons. All security guards shall be licensed under the California State Private Security Services Act, Business and Professions Code Section 7580 et seq.

Z. Public nudity will be prohibited on the premises at all times. For the purposes of this section, the term "public nudity" shall mean appearing in a state such that the individual is clothed in less than pasties and a G-string. The phrase "G-string" shall mean an article of clothing that opaquely covers the buttocks at least one inch on either side of the natal cleft and covers the entirety of the genitalia and pubis. The term "pasties" shall mean an article of clothing that opaquely covers the nipple and areola of the female breast and is not designed to nor appears to look like the nipple and/or areola of the female breast.

AA. A person who has managerial control over the daily operation of the adult-oriented business shall inform each employee of the business of the requirements imposed under this Chapter 5.12.

(Ord. 1239 §§ 2—12, 1999; Ord. 1127 § 3 (part), 1993)

* The distance of separation required by Findings A, B and C 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 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.

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 or any increase of ten (10) percent or more of the floor area of the 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.

(Ord. 1127 § 3 (part), 1993)

A. Inspections. .....Due to the potential harm associated with the secondary effects found to be created by adult-oriented businesses, the permittee shall permit officers of the City of San Clemente, the County of Orange, 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 Community Development may revoke an adult-oriented business permit when he or she discovers that any of the following have occurred:

1. Any of the findings contained in Section 5.12.050 above ceases to be satisfied;

2. The application contains incorrect, false or misleading information;

3. The applicant, and/or any of the officers or general partners, if a corporation or partnership, of the adult-oriented business has been found guilty of violating any of the provisions of an adult-oriented business permit or similar permit or license in any city, county, territory or state, or of any misdemeanor or felony classified by the state as a sex-related offence including but not limited to a violation of the following Penal Code sections and their subparts and subsections: 220, 261, 262, 264, 264.1, 265, 266, (inc. 266a-266k) 267, 286, 286.5, 288, 288a, 289, 647, 647b, 647d, 647.6.

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

C. Revocation Notice. .....Upon determining that the grounds for permit revocation exist, the Director of Community Development shall furnish written notice of the proposed revocation to the permittee. Such notice shall summarize the principal reasons for the proposed revocation, shall state that the permittee may appeal the decision within fifteen (15) calendar days of the posting or the post-marked 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 pre-paid, to the permittee as that name and address appears on the permit. Not later than fifteen (15) calendar days after the latter of the mailing or posting of the notice, the permittee may file an appeal of the Director of Community Development's determination with the City Clerk. If the appeal is filed within fifteen (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. Appeal. .....Upon receipt of a written appeal request, the City Clerk shall schedule an appeal to be heard before the City Council or, if determined appropriate by the City Manager, Hearing Officer, within thirty (30) calendar days of receipt of such request. Notice of the appeal hearing shall be provided in the manner required under Section 17.12.100 of this code. Notice of the time and place of the hearing shall be sent to the permittee via certified mail, return receipt requested and postage prepaid at least fifteen (15) calendar days in advance of the date set for the hearing. At the hearing, the permittee and the City shall be entitled to present relevant evidence, testify under oath, and call witnesses who shall testify under oath. The City Council, or Hearing Officer, as applicable, shall not be bound by the traditional rules of evidence in a hearing, except that hearsay evidence may not be the sole basis for the decision of the City Council or the Hearing Officer, as applicable. The City Council or the Hearing Officer, as applicable, may continue the hearing as it deems necessary. Within fifteen (15) calendar days after the conclusion of the hearing, the City Council or the Hearing Officer shall rule on the appeal.

E. Rule Application After Revocation. .....No person, corporation, partnership or member thereof or any other entity may obtain an adult-oriented business permit within two (2) years of the date its permit has been revoked.

F. Maintenance of Status Quo. .....The status quo shall be maintained pending conclusion of the revocation hearing. If a judicial action is commenced challenging the revocation, the status quo shall be maintained until such time as a judicial decision is rendered from the court in which the action is filed.

(Ord. 1239 §§ 14—17, 1999; Ord. 1127 § 3 (part), 1993)

Editor's note— Ord. No. 1664, § 6, adopted Sept. 18, 2018, repealed § 5.12.100, which pertained to Violation—Penalty and derived from Ord. 1300 § 2, adopted in 2005; Ord. 1127 § 3 (part), adopted in 1993; and Ord. No. 1501, § 2, adopted March 16, 2010.

Should any section, subsection, clause or provision of ordinance 1239, codified in Sections 5.12.040, 5.12.050 and 5.12.090, for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of Ordinance 1239, codified in Sections 5.12.040, 5.12.050 and 5.12.090; it being hereby expressly declared that Ordinance 1239, and each section, subsection, sentence, clause and phrase thereof would have been prepared, proposed, approved, adopted and/or ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional including, but not limited to, the locational and operational requirements contained in Section 5.12.050. In the event a court of competent jurisdiction renders a decision invalidating the permit issuance process contained in this chapter, any adult-oriented business which operates in the City shall be deemed to be operating under a de facto permit subject to the requirements contained in Section 5.12.050. The de facto permit shall remain subject to the remaining provisions of this chapter which have not been invalidated including but not limited to Section 5.12.080 (Permits nontransferable—Use specific); and Section 5.12.090 (Enforcement and revocation).

(Ord. 1239 § 19, 1999; Ord. No. 1664, § 7, 9-18-2018)