Simi Valley Municipal Code Art. 1 General Provisions

It is the intent of this article to prevent community wide adverse economic impacts, increased crime, decreased property values, and the deterioration of neighborhoods which can be brought about by the concentration of sexually oriented businesses in close proximity to each other or proximity to other incompatible uses such as schools for minors, churches, and residentially zoned districts or uses. The City Council finds that it has been demonstrated in various communities that the concentration of sexually oriented businesses causes an increase in the number of transients in the area, and an increase in crime, and in addition to the effects described above can cause other businesses and residents to move elsewhere. It is, therefore, the purpose of this article to establish reasonable and uniform regulations to prevent the concentration of sexually oriented businesses or their close proximity to incompatible uses, while permitting the location of sexually oriented businesses in certain areas.

(§ 2, Ord. 932, eff. July 30, 1998)

"Applicant" shall mean 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 a sexually oriented business.

"Bar" shall mean any commercial establishment licensed by the State Department of Alcoholic Beverage Control to serve any alcoholic beverages on the premises.

"Chief of Police" shall mean the Chief of Police of the City of Simi Valley or his or her designee.

"City Council" shall mean the City Council of the City of Simi Valley.

"Day" shall mean calendar day and not business day. Whenever "day" is used to identify requirements of this chapter to be performed on a particular day, which day falls upon a holiday, Saturday or Sunday, the day for performance of the requirements of this chapter will be the next business day after such holiday, Saturday or Sunday.

"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 example, 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, 171 Cal. Rptr. 251 (1981).

"Establishment of a sexually oriented business" shall mean and include any of the following:

(1) The opening or commencement of any sexually oriented business as a new business;

(2) The conversion of an existing business, whether or not a sexually oriented business, to any sexually oriented business defined herein;

(3) The addition of any of the sexually oriented businesses defined herein to any other existing sexually oriented business; or

(4) The relocation of any such sexually oriented business.

"Figure model" shall mean 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.

"Health Officer" shall mean the Health Officer of the County of Ventura or his or her duly authorized representative.

"Nudity or a state of nudity" shall mean the showing of the human male or female genitals, pubic area, buttocks, or anus 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.

"Patron" shall mean a customer.

"Permit" shall mean any permit issued pursuant to this chapter.

"Permittee" or "owner" shall mean the person to whom a sexually oriented business permit is issued.

"Person" shall mean any individual, partnership, copartnership, firm, association, joint stock company, corporation, or combination of the above in whatever form or character.

"Regularly features" shall mean, with respect to an adult theater, adult cabaret, adult arcade or adult motion picture theater, a regular and substantial course of conduct. Performances which are distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities, occur on two or more occasions within a thirty (30) day period; three or more occasions within a sixty (60) day period; or four or more occasions within a 180 day period, that shall to the extent permitted by law be deemed to be a regular and substantial course of conduct.

"Religious institution" shall mean a structure which is used primarily for religious worship and related religious activities.

"School" shall mean any child or day care facility, or an institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and maintained pursuant to standards set by the State Board of Education. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university.

"Semi-nude" or "semi-nudity" shall mean 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.

"Sexually oriented businesses" shall mean any one of the following:

(1) "Adult arcade" shall mean an establishment which, for any form of consideration, regularly features one or more still or motion picture projectors, or similar machines, for viewing by patrons and which shows films, computer generated images, motion pictures, video cassettes, slides or similar photographic reproductions which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(2) "Adult bookstore" shall mean 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 distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(3) "Adult business" shall mean any business establishment or concern which regularly features conduct which performs or operates as an adult bookstore, adult video store, adult arcade, adult cabaret, adult theater, adult motion picture theater, adult motel or hotel, or any other business or concern which regularly features or offers to its patrons products, merchandise, services, or entertainment which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas but not including those uses or activities, the regulation of which is preempted by State law. "Adult business" also includes any establishment which as a regular and substantial course of conduct provides or allows performers, models, or employees to appear in any public place dressed only in lingerie.

(4) "Adult cabaret" or "adult theater" shall mean a nightclub, restaurant, or similar business establishment which: regularly features live performances which are distinguished or characterized by an emphasis upon the display of specified sexual activities; which regularly features persons who appear semi-nude; or which shows films, computer generated images, motion pictures, video cassettes, slides, or other photographic reproductions thirty (30%) percent or more of the number of which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(5) "Adult hotel or motel" shall mean 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 distinguished or 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 (6) hour period, or rents, leases, or lets any single room more than twice in a twenty-four (24) hour period.

(6) "Adult motion picture theater" shall mean 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 distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(7) "Modeling studio" shall mean a business which provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purposes 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" does not include a studio or similar facility owned operated, or maintained by an individual artist or group of artists, which does not provide, permit, or make available "specified sexual activities."

"Sexually oriented business operator" or "operator" shall mean a person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of a sexually oriented business or the conduct or activities occurring on the premises thereof.

"Sexually oriented business performer" or "performer" shall mean any person who is an employee or independent contractor of the sexually oriented business, and any person who, with or without any compensation or other form of consideration, performs live entertainment dressed in no more than a state of semi-nudity for patrons of a sexually oriented business.

"Sexually oriented material" shall mean 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 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" shall mean sexually oriented implements and paraphernalia, including: dildos, auto-sucks, sexually oriented vibrators, edible underwear, ben-wah balls, inflatable orifices, anatomical balloons with orifices, simulated and battery-operated vaginas and similar sexually orient devices, which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity.

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

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

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

(3) Any device, costume or covering that simulates any of the body parts included in subdivisions (1) or (2) above.

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

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

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

(3) Masturbation, actual or simulated; or

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

"Studies" shall mean the studies and reports prepared by other cities and judicial rulings referred to in Section 1 (A) of the ordinance codified in this chapter.

(§ 2, Ord. 932, eff. July 30, 1998)

No sexually oriented business shall be established or located in any zone in the City of Simi Valley other than the Sexually Oriented Business Overlay Zone and within that zone within certain distances as set forth below:

(a) No such business shall be established or located within 500 feet of any other sexually oriented business.

(b) No such business shall be established or located within 500 feet from Oak Park.

(c) Measurement of the distances set forth above shall be a straight line from the primary entrance of the sexually oriented business to the primary entrance of the property so zoned or used without regard to intervening structures and to the property line of Oak Park.

(d) For purposes of this chapter a use shall be considered existing if it is in existence at the time an application is submitted.

(e) No person shall cause or permit the operation, establishment, or maintenance of more than one sexually oriented business in the same building, structure, or any portion thereof. Each sexually oriented business shall constitute a separate business for purposes of this chapter.

(§ 2, Ord. 932, eff. July 30, 1998)

Any use of real property existing on June 29, 1998, which does not conform to the provisions of Section 5-8.103, but which was constructed, operated, and maintained in compliance with all previous regulations, shall be regarded as a nonconforming use which may be continued unless sooner terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, or altered except that the use may be changed to a conforming use.

(a) Abandonment. Notwithstanding the above, any discontinuance or abandonment of the use of any lot or structure as a sexually oriented business for thirty (30) days or more shall result in a loss of legal nonconforming status of such use.

(b) Amortization—Annexed property, zone change. Any sexually oriented business which was a legal use at the time of annexation of the property and which is located in the City, but which does not conform to the provisions of Section 5-8.103 or which was a legal use at the time that it was established but which has become nonconforming because of change in zoning, shall be terminated within one year of the date of annexation or zone change unless an extension of time has been approved by the hearing officer in accordance with the provisions of Section 5-8.105.

(§ 2, Ord. 932, eff. July 30, 1998)

The owner or operator of a nonconforming use as described in subsection (b) of Section 5-8.104 may apply under the provisions of this section to the Chief of Police for an extension of time within which to terminate the nonconforming use.

(a) Time and manner of application. An application for an extension of time within which to terminate a use made nonconforming by the provisions of Section 5-8.103, may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. Such an application must be filed with the Chief of Police at least ninety (90) days but no more than 180 days prior to the time established in Section 5-8.104 for termination of such use.

(b) Content of application; fees. The application shall state the grounds for requesting an extension of time. The filing fee for such application shall be the same as that for a variance as is set forth in the schedule of fees established by resolution from time to time by the City Council.

(c) Hearing procedure. The City Manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within forty-five (45) days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The decision of the hearing officer shall be final and subject to judicial review pursuant to Code of Civil Procedure Section 1094.6. If the applicant fails to seek judicial review within the allotted time period, the decision of the hearing officer shall have res judicata and collateral estoppel effect in any other proceeding involving the same applicant. See United States v. Utah Constr. Co. 384 U.S. 394 (1966).

(d) Approval of extension; findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved, and shall be approved only if the hearing officer makes all of the following findings or such other findings as are required by law.

(1) The applicant has made a substantial investment in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to another use; and such investment was made prior to June 29, 1998;

(2) The applicant will be unable to recoup said investment as of the date established for termination of the use; and

(3) The applicant has made good faith efforts to recoup the investment and to relocate the use to a location in conformance with Section 5-8.103.

(§ 2, Ord. 932, eff. July 30, 1998)

(a) No person may engage in, conduct or carry on, or permit to be engaged in, conducted or carried on, in or upon any premises in the City of Simi Valley, the operation of a sexually oriented business unless the person first obtains and continues to maintain in full force and effect a permit from the City of Simi Valley as herein required (sexually oriented business regulatory permit).

(b) Sexually oriented business performers shall obtain a permit from the City of Simi Valley as herein required (sexually oriented business performer permit).

(c) The Chief of Police shall grant, deny, renew, suspend, revoke, and transfer sexually oriented business regulatory permits and sexually oriented business performer permits in accordance with these regulations.

(§ 2, Ord. 932, eff. July 30, 1998)