HomeMy WebLinkAbout94-17 Amending Title 13; Limiting Sexually Oriented Businesses to Specified Zoning DistrictsORDINANCE- NO. 94-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF COSTA MESA, CALIFORNIA, AMENDING ARTICLE 2
OF CHAPTER XIII OF TITLE 13 OF THE COSTA MESA
MUNICIPAL CODE REGARDING ADULT, SEXUALLY -
ORIENTED BUSINESSES, AND LIMITING THEM TO
SPECIFIED ZONING DISTRICTS; AMENDING CHAPTER
IV OF TITLE 91 PROVIDING FOR LICENSING AND
REGULATION OF ADULT, SEXUALLY -ORIENTED
BUSINESSES; .AND ADDING ARTICLE 22 TO CHAPTER
II OF TITLE 9.0 PROVIDING FOR LICENSING AND
REGULATION OF MASSAGE ESTABLISHMENTS AND
MASSAGE PRACTITIONERS.
THE CITY COUNCIL OF THE CITY OF COSTA MESA DOES HEREBY ORDAIN
AS FOLLOWS:
Section 1. The City Council of the City of Costa Mesa does
hereby find, determine and declare that:
A. It is the purpose and intent of this ordinance to
provide for the reasonable and uniform regulation of sexually -
oriented businesses in the City of Costa Mesa. It is recognized
that sexually -oriented businesses have a serious deleterious effect
upon adjacent areas, as well as the areas in which they are
located. It is therefore the purpose of this ordinance to
establish criteria and standards for the establishment and conduct
of sexually -oriented businesses. which will protect the public
health, safety, and welfare,- preserve locally recognized values of
community appearance, minimize the potential for nuisances related
to the operation of sexually -oriented businesses, and maintain
local property values.
B. It is the purpose and intent of this ordinance to
establish proper regulations and to provide for a reasonable number
of appropriately located sites for sexually -oriented businesses
within the City of Costa Mesa, based upon the following findings:
(1) The City Council in adopting this
ordinance takes legislative notice of the
existence and content of the following studies
that substantiate the adverse, secondary
effects of sexually -oriented businesses:
Austin, Texas
1986
Indianapolis, Indiana
1984
Los Angeles, California
1977
Minneapolis, Minnesota
1980
Phoenix, Arizona
1979
Mission Viejo, California
1992
Renton, Washington
1984
Seattle, Washington 1989
San Diego, California 1987
St. Paul, Minnesota 1989
Garden Grove, California 1991
Upland, California 1992
(2) Based on the foregoing studies and the other
evidence presented, the City of Costa Mesa finds
that:
(a) Sexually -oriented businesses are
linked to increases in the crime rates of
those areas in which they are located and
that surround them; and
(b) Both the proximity of sexually -
oriented businesses to sensitive land
uses and the concentration of sexually -
oriented businesses tend to result in the
blighting and downgrading of the quality
of life in areas in which they are
located.
(3) The studies conducted in various communities
in other jurisdictions have demonstrated that the
proximity and concentration of sexually -oriented
businesses adjacent to residential, recreational,
religious, or educational uses, or other sexually -
oriented businesses can cause other businesses and
residents to move elsewhere.
(4) The studies conducted in various communities
in other jurisdictions have demonstrated that
sexually -oriented businesses are linked to
increases in the crime rates and blighting of those
areas in which they are located.
(5) The special regulation of sexually -oriented
businesses is necessary to ensure that their
adverse secondary effects will not contribute to an
increase in the crime rates or the blighting or
downgrading of the areas in which they are located
or surrounding areas. The need for the special
regulation is based on the recognition that
sexually -oriented businesses have serious
objectionable operational characteristics,
particularly when several of them are concentrated
under certain circumstances or located in direct
proximity to sensitive uses such as residential
zones and uses, parks, schools, churches, or day
care centers, thereby having a deleterious effect
upon the adjacent areas.
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(6) It is the purpose and intent of these special
regulations to prevent the concentration of
sexually -oriented businesses and thereby to prevent
such adverse secondary effects. Thus, in order to
protect and preserve the public health, safety, and
welfare of the citizenry, especially minors, the
special regulation of the time, place, and manner
of the location and operation of sexually -oriented
businesses is necessary.
(7) The protection and preservation of the public
health, safety and welfare require that certain
distances be maintained between sexually -oriented
businesses and residential uses and zones,
churches, schools, day care centers, parks and
other sexually -oriented businesses. In preparation
of this ordinance, the City of Costa Mesa has taken
the location of residential, religious,
educational, recreational land uses and other
sexually -oriented businesses into consideration and
has endeavored to minimize the effect that
sexually -oriented businesses have upon those
sensitive areas and upon the community in general.
(8) The need to regulate the proximity of
sexually -oriented businesses to sensitive land uses
such as residential, religious, educational,
recreational uses and other sexually -oriented
businesses is documented in studies conducted by
other jurisdictions as listed elsewhere in this
section.
(9) The report of the State of Minnesota Attorney
General's Working Group on the regulation of
sexually -oriented businesses dated June 6, 1986,
indicates that:
(a) Community impacts of sexually -
oriented businesses are primarily a
function of two variables, proximity to
residential areas and concentration.
Property values are directly affected
within a small radius, typically one
block, of the location of a sexually -
oriented business. Concentration may
compound depression of property values
and may lead to an increase of crime
sufficient to change the quality of life
and perceived desirability of property in
a neighborhood; and
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(b) The impacts of sexually -oriented
businesses are exacerbated when they are
located near each other. When sexually -
oriented businesses have multiple uses
(i.e., theater, bookstore, nude dancing,
peep booths) , one building can have the
impact of several separate businesses.
(10) In consideration of the findings of the report
of the State of Minnesota Attorney General's
Working Group on the regulation of sexually -
oriented businesses dated June 6, 1986, it is
appropriate to prohibit the concentration of
multiple sexually -oriented businesses in order to
mitigate the compounded concentrations as described
above.
(11) In adopting the regulations set out in this
article, it is recognized that locating sexually -
oriented entertainment facilities covered by this
article in the vicinity of facilities frequented by
minors will cause exposure of minors to sexual
material which, because of their immaturity, may
adversely affect them. In addition, it is
recognized that many persons are offended by the
public display of certain sexual material. Special
regulation of these uses is necessary to ensure
that these adverse effects will not contribute to
the blighting or downgrading of the surrounding
neighborhood and to an adverse effect on minors.
The City of Costa Mesa has conducted studies which
identify particular areas of the City frequented by
minors, and has identified areas wherein sexually -
oriented businesses would have a major impact upon
the residents of the City, and has utilized such
studies as the basis for locating areas of the City
appropriate for the sexually -oriented businesses in
Commercial Zones established by this ordinance.
(12) The provisions of this ordinance have
neither the purpose nor effect of imposing a
limitation or restriction on the content of
any communicative materials, including
sexually -oriented materials, that are
protected by the First Amendment of the United
States Constitution and the relevant
provisions of the California State
Constitution.
(13) To protect the health, safety and welfare of
customers, owners and tenants of neighboring properties
and the general public, the City of Costa Mesa has
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previously regulated massage businesses as adult
entertainment uses. The City desires to continue to
regulate massage businesses but desires to separate these
regulations from those applicable to adult, sexually -
oriented businesses.
Section 2. Article 22 is hereby added to Chapter II of
Title 9 of the Costa Mesa Municipal Code, to read as follows:
Article 22. Massage Establishments and Practitioners.
Sec. 9-323. Definitions.
The following words and phrases shall, for the purposes of
this article, be defined as follows, unless it is clearly
apparent from the context that another meaning is intended:
(a) Massage. Any manipulation or treatment of the
human body by use of pressure, friction, stroking,
kneading, rubbing, adjusting, tapping, touching,
pounding, or vibrating, by manual or mechanical
means.
(b) Massage Establishment. , A n y business o r
establishment where, for any form of consideration,
massage, acupressure, alcohol rub, fomentation,
electric or magnetic treatment, or similar
treatment or manipulation of the human body, or
hydro -therapy or baths, is provided, including any
business, establishment or person involving the
provision of off -premises massage services.
(c) Massage Practitioner. Any person who offers or
administers services,, massages, baths, or health
treatments involving massage to another person for
any form of consideration.
(d) Nationally Recognized Professional Massage
Organization or Association. An organization or
association that meets each of the following
requirements:
(1) Has tax exempt status under Section 501(c) of the
Internal Revenue Code;
(2) Requires that its members meet minimum
educational requirements. The
educational requirements must include at
least five hundred (500) classroom hours,
or its equivalent, in anatomy,
physiology, hygiene, sanitation, massage
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theory and practice, and ethics of
massage practice;
(3) Offers and encourages participation in
continuing education programs;
(4) Has an established code of ethics and has
enforcement procedures for the suspension
and revocation of membership of persons
violating the code of ethics;
(5) Is open to members of the general public
meeting the requirements for membership
on a national basis, and in fact
maintains a membership which reflects
substantial national participation by
persons engaged in the practice of
therapeutic massage, and is devoted to
serving the interests of its members, the
public and the profession.
(e) Off -premises. Any business where the primary services
are provided at a location or locations other than the
premises of the subject business.
(f) Person. Any individual, firm, association,
partnership, corporation, joint venture, trust or
combination of individuals or persons.
Sec. 9-324. Exceptions.
The provisions of this article shall not apply to the
following classes of individuals while engaged in the
performance of the duties of their respective professions:
(a) Physicians, surgeons, chiropractors, osteopaths, physical
therapists or acupuncturists who are duly licensed to
practice their respective professions in the State of
California, and employees of such licensed professionals
while working in the office of, and under the supervision
of, such licensed professional.
(b) Nurses registered under the laws of the State of
California.
(c) Barbers and cosmetologists who are duly licensed under
the laws of the State of California while engaging in
practices within the scope of their licenses, except that
this provision shall apply solely to the massaging of the
neck, face and/or scalp of the customer or client.
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(d) Hospitals, nursing homes, sanatoriums or other health
care facilities duly licensed by the State of California.
(e) Athletic coaches and trainers acting within the scope of
their employment while employed by accredited high
schools, junior colleges, colleges or universities.
(f) Individuals administering massages or health treatment
involving massage to persons participating in road races,
track meets, triathalons and similar single occurrence
athletic or recreational events, provided that all of the
following conditions are met:
(1) The massage services are made equally available to
all participants in the event;
(2) The event is open to participation by the general
public or a significant segment of the public, such
as employees of sponsoring or participating
corporations;
(3) The massage services are provided at the site of
the event and either during, immediately preceding
or immediately following the event;
(4) The sponsors of the event have been advised of and
have approved the provision of massage services;
(5) The persons providing the massage services are not
the primary sponsors of the event.
Sec. 9-325. Massage Services in Athletic Clubs.
(a) Massage services may be offered as an accessory use in a
bona fide athletic club or similar establishment without
obtaining a separate massage establishment license. Such
accessory massage services shall comply with the
following standards:
(1) The massage service shall be incidental to the
operation of the athletic club and shall not occupy
more than twenty percent -(20%) of the gross floor
area of the athletic club or one thousand (1,000)
square feet, whichever is less.
(2) The athletic club shall have a valid, current
conditional use permit or similar required zoning
approval which identifies the provision of massage
services as a part of the business.
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(3) All massage practitioners shall hold valid, current
practitioner's licenses as required under the
provisions of this chapter.
(b) The massage establishment and massage practitioners shall
comply with the requirements of Section 9-334.
Sec. 9-326. Massage Services in Hotels.
(a) Massage services may be offered as an accessory use in
hotels with one hundred (100) or more rooms without
obtaining a separate massage establishment license. Such
accessory massage services shall comply with the
following standards:
(1) The massage service shall be incidental and
accessory to the hotel business and shall not
occupy more than twenty percent (20%) of the gross
floor area of the hotel or one thousand (1,000)
square feet, whichever is less.
(2) All massage practitioners shall hold valid, current
practitioner's licenses as required under the
provisions of this chapter.
(b) The massage establishment and massage practitioners shall
comply with the requirements of Section 9-334.
Sec. 9-327. Massage Establishment License Required.
It shall be unlawful for any person to engage in, conduct or
carry on, or to permit any person to engage in, conduct or
carry on, in or upon any premises within the City of Costa
Mesa, the business of massage without a valid- massage
establishment license issued pursuant to the provisions of
this chapter.
Sec. 9-328. License Required for Each Location; Display of
License.
A separate massage establishment license is required for each
location within the boundaries of the City of Costa Mesa at
which a massage establishment is to be operated and/or�
arrangements for a practitioner are made, or where services
are provided, or where compensation for a practitioner is
paid. A separate massage establishment license is not
required, however, for each location where off -premises
massage services are provided. The requirements of this
chapter for a massage establishment license are separate and
in addition to the Business Tax Registration Certificate
required under Chapter I of this Title. Every massage
establishment shall display its massage establishment license
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prominently in an area open to the public at each such
location at all times when the location is open for business.
Sec. 9-329. Transfer of Ownership or Control.
Upon the transfer of ownership or control of a massage
establishment, the massage establishment license shall
immediately become null and void. In order for the massage
establishment to continue operating, a new massage
establishment license shall be obtained.
Sec. 9-330. Change of Location or Name.
(a) Upon the change of location of a massage establishment,
the massage establishment license shall immediately
become null and void. In order for the massage
establishment to continue operating, a new massage
establishment license shall be obtained.
(b) No permittee shall operate a massage establishment under
any name or designation not specified in the license.
Upon the change of name of the massage establishment, the
massage establishment license shall immediately become
null and void. In order for the massage establishment to
continue operating, a new massage establishment license
shall be obtained.
Sec. 9-331. Term of Massage Establishment License.
An approved massage establishment license shall be valid for
one year, and shall be renewed on an annual basis on the
anniversary date of the original application. Application for
renewal of an unrevoked massage establishment license shall be
made at least thirty (30) -days prior to the expiration date of
the current, valid license.
Sec. 9-332. Application for Massage Establishment License.
(a) An applicant for issuance or renewal of a massage
establishment license shall file a written, signed
and verified application or renewal application on
a form provided by the Police Department. Each
application shall be accompanied by a non-
refundable fee for filing or renewal in an amount
determined by resolution of the City Council, which
fees will be used to defray the costs of
investigation, inspection and processing of such
application. Such fee shall not exceed the
reasonable cost of investigation, inspection and
processing of such application. License fees
required under this Article shall be in addition to
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any license, permit or fee required under any other
chapter or title of this Code.
(b) An application for a massage establishment license shall
contain the following information:
(1) The name and permanent address of the applicant.
(2) The name and business address of the applicant. If
the applicant is a corporation, the name shall be
exactly as set forth in its Articles of
Incorporation and the applicant shall show the name
and residence address of each of the officers,
directors and each stockholder owning no less than
twenty-five percent (25%) of the stock of the
corporation. If the applicant is a partnership,
the application shall show the name and residence
address of each of the members, including limited
partners;
(3) A detailed description of the manner of providing
the proposed services, including types of services
and the number of persons engaged in the services;
(4) The name of the proposed business;
(5) Hours of operation;
(6) A location, address and floor plan showing where
the massage services are proposed to be conducted
within the building; and for off -premises services,
a statement of the location and address of the
premises where services are arranged or scheduled
and a description of the process for providing off -
premises services and description of the off -
premises locations for such services;
(7) The name or names of the person or persons having
the management or supervision of applicant's
business and of any services provided;
(8) For a renewal application, applicant in addition
shall indicate any changes since the filing of the
initial application.
(9) A statement as to whether or not the applicant has
previously worked, in the five (5) years preceding
the application, as a massage practitioner or
similar occupation within this State under a permit
or license and/or has had such permit or license
revoked or suspended, and the reasons therefore.
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(10) A statement containing such information as may be
required by the Police Chief to make the necessary
determination in accordance with subsections 9-
333 (a) (3) , (5) and (6) .
(11) An applicant shall designate on the application
whether he or she will operate off -premises and
whether he or she will operate as a home
occupation. This information shall be included on
the license.
Sec. 9-333. Decision of Police Chief.
(a) After an investigation, the Police Chief or his or her
designee shall approve the issuance or renewal of a
license unless he or she finds one or more of the
following to be true:
(1) That the building, structure, equipment and
location used by the business for which a license
is required herein does not comply with the
requirements and standards of the health, zoning,
fire and safety laws of the State of California and
the City of Costa Mesa.
(2) That the applicant, his or her employee, agent,
partner, director, officer, stockholder or trustee
has knowingly made any false, misleading or
fraudulent statement of material fact in the
application for a license or in any report or
record required to be filed with the Police
Department;or other department of the City.
(3) That the applicant or his/her spouse or live-in
companion has had any type of massage business
license or adult business license revoked by any
public entity within two (2) years of the date of
the application;
(4) That an applicant or his or her employee is under
eighteen (18) years of age.
(5) That an applicant or any agent or employee of the
applicant has been convicted in a court of
competent jurisdiction of any crime in conjunction
with or as a result of the operation of a massage
establishment or adult business or any sex-related
crime or other crime of moral turpitude during or
prior to the filing of the application.
(6) The applicant or his or her employee has engaged in
disqualifying conduct as follows:
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a. Within five years immediately preceding the
date of filing of the application for a
license under this Article has been convicted
in a court of competent jurisdiction of any
misdemeanor or felony offense which relates
directly to the operation of a massage
establishment, whether as a massage
establishment owner or operator, or as a
massage practitioner, or any felony, the
commission of which occurred on the premises
of a massage establishment; or
b. Within five years immediately preceding the
date of the filing of the application for a
license under this Article has had any massage
establishment or practitioner license or
permit, which was issued by the State of
California, or by any county or municipality,
revoked; or
c. Within five years immediately preceding the
date of the filing of the application for a
license under this Article has been convicted
in a court of competent jurisdiction of any
violation of Section 266h, 2661, 315, 316,
318, or subdivision (b) of Section 647 of the
California Penal Code; or any offense in a
jurisdiction outside the State of California
which is the equivalent of any of the
aforesaid offenses.
(7) In addition to the above -referenced requirements of
this subsection, a massage practitioner license
shall not issue unless the applicant complies with
all the requirements of Section 9-338(c).
(b) The decision of the Police Chief regarding any license
application under this Article shall be issued within
sixty (60) days of the date of the filing of a complete
application unless the Police Chief has set the matter
for hearing before the City Council. Such hearing before
City Council must be held and a decision rendered within
sixty (60) days from the date of filing of a complete
application, unless the matter is continued at the
request of the applicant. Any decision of the Police
Chief may be appealed to the City Council within seven
(7) days of the decision. Any appeal shall be processed
in accordance with procedures set forth in Title 2 of
this Code.
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Sec. 9-334. Massage Establishment Regulations.
All massage establishments shall comply with the following
facilities and operations requirements:
(a) Massage establishments shall comply with all applicable
requirements of this Code.
(b) Sanitary facilities shall be provided in accordance with
applicable building codes. At a minimum, one toilet and
wash basin shall be provided in every massage
establishment.
(c) All lavatories or wash basins shall be provided with hot
and cold running water, - soap and single service towels in
permanently -installed dispensers.
(d) Minimum ventilation shall be provided in accordance with
applicable building and mechanical codes.
(e) All plumbing and electrical installations shall be
installed under permit and inspection of the Development
Services Department, and such installations shall be
installed in accordance with applicable codes.
(f) The walls in all rooms where water or steam baths are
given shall have a washable, mold -resistant surface.
(g) All walls, ceilings, floors, pools, showers, bathtubs,
steamrooms and all other physical facilities including
appliances and apparatuses for the establishment must be
in good repair and maintained in a clean and sanitary
condition. wet and dry heat rooms, steam or vapor rooms,
or steam or vapor cabinets, shower compartments and
toilet rooms shall be thoroughly cleaned and disinfected
each day the business is in operation. Bathtubs shall be
thoroughly cleaned and disinfected after each use.
(h) All massage establishments shall be provided with clean
and sanitary towels, sheets and linens in sufficient
quantity. Towels, sheets and linens shall not be used by
more than one person. Reuse of such linen is prohibited
unless the same has first been laundered.
(i) Cabinets or other covered space shall be provided for the
storage of clean linen. Approved receptacles shall be
provided for the storage of all soiled linen and paper
towels.
(j) Disinfecting agents and sterilizing equipment shall be
provided for any instruments used in performing acts of
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massage and said instruments shall be disinfected and
sterilized after each use.
(k) Pads used on massage tables shall be covered with
durable, washable plastic or other acceptable waterproof
material.
(1) To assure patrons' health, safety, sanitation and
comfort, all employees and massage practitioners shall be
clean and dressed in clean, non -transparent outer
garments while upon the premises. Said garments shall
not expose "specified anatomical areas" as defined in
Section 13-860.2 of this Code. All patrons shall be
draped to prevent exposure of their "specified anatomical
areas" while receiving such services.
(m) Security deposit facilities capable of being locked by
the patron or a security bag that may be carried by the
patron shall be available for the protection of the
valuables of the patrons.
(n) Each service offered, the price thereof, and the minimum
length of time such service will be performed shall be
posted legibly and in a conspicuous public location in
each massage establishment. No services shall be
performed and no sums shall be charged for such services
other than those posted.
(o) No massage establishment shall be open for business
between the hours of 10:00 p.m. and 8:00 a.m.
(p) No alcoholic beverages shall be sold, served, -furnished,.
kept or possessed in any part of a building used for
massage and related._activity. -
(q) Except for massage practitioners operating under both a
valid massage practitioner license and a home occupation
permit, and except for massage practitioners operating in
a hotel under a valid massage practitioner license, no
massage establishment shall be used for residential or
sleeping purposes.
Sec. 9-335. Off -Premises Massage.
A massage practitioner engaging in the business of off -
premises massage shall comply with the provisions of
subsections (h), (j), (k), and (1) of section 9-334. In
addition, such massage practitioners shall comply with all of
the following requirements:
(a) Off -premises massage shall not be conducted between
the hours of 10:00 p.m.. and 8:00 a.m.;
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(b) A massage professional engaged in the practice of off -
premises massage shall carry a sufficient quantity of
clean and sanitary towels, sheets and linens to comply
with the requirements of subsection (h) of Section 9-334;
(c) A massage professional engaged in the practice of off -
premises massage shall carry a practitioner
identification card required by Section 9-339 and price
and service sheet required by subsection (n) of Section
9-334.
Sec. 9-336. Massage Practitioner License Required.
It shall be unlawful for any person to act as a massage
practitioner unless such person holds a valid massage
practitioner license issued pursuant to this Article by the
City of Costa Mesa.
Sec. 9-337. Term of Massage Practitioner License.
The term of the massage practitioner license shall be one year
from the date of issuance. Application for renewal of an
unrevoked massage practitioner license shall be made at least
thirty (30) days prior to the expiration date of the current,
valid license.
Sec. 9-338. Application for Massage Practitioner License.
(a) An applicant for issuance or renewal of a massage
practitioner license shall file a written, signed and
verified application or renewal application on a form
provided by. the Police Department. Each application
shall be accompanied by a non-refundable fee for filing
or renewal in -an amount determined by resolution of the
City Council, which fees will be used to defray the costs
of investigation, inspection and processing of such
application. Such fee shall not exceed the reasonable
cost of investigation, inspection and processing of such
application. License fees required under this Article
shall be in addition to any license, permit or fee
required under any other chapter or title of this Code.
(b) The application for a massage practitioner license does
not authorize acting as a massage practitioner until such
license has been granted.
(c) Each applicant for a massage practitioner license or
renewal thereof shall furnish the information required by
subsections 9-332(b)(1), (2), (8), (9), (10) and (11) of
this Article and shall in addition, furnish the following
information:
is
(1) Satisfactory evidence that the applicant:
a. Is a member in good standing of a nationally
recognized professional massage organization
or association as defined in this article, or
b. Has, within four years immediately preceding
the date of filing the application, passed an
independently prepared and administered
national certification examination which has
been recognized by objective standards to
fairly evaluate professional levels of skill,
safety and competence, as determined by the
National Commission for Certifying Agencies
(NCCA) or similar certifying agencies meeting
the criteria in Section 9-323(d).
(2) A certificate from a medical doctor licensed to
practice in the State of California, stating that
the applicant has been examined and found to be
free of any contagious or communicable disease
within thirty (30) days immediately preceding the
date of the application.
(3) Such other identification and information as the
Chief of Police may require in order to verify the
matters required to be set forth in the
application.
Sec. 9-339. Massage Practitioner Identification Card.
Each massage practitioner licensee shall be issued an
identification card which will contain a photograph of the
massage practitioner licensee and information to identify that
the person is holding a massage practitioner license from the
City of Costa Mesa. The licensee shall have such card in his
or her possession at all times when acting as a massage
practitioner and shall produce same for inspection upon
request by any police officer. Each massage practitioner
shall immediately surrender to the Chief of Police any license
identification card issued by him or her upon suspension,
revocation or expiration of said license or upon leaving
employment as a massage practitioner.
Sec. 9-340. Inspection.
A licensee or his or her employee, agent, partner, director,
officer, stockholder, or trustee shall permit representatives
of the Police Department, Health Department, Fire Department,
Development Services Department, or other City Departments or
agencies, to inspect the premises of a massage establishment
for the purpose of ensuring compliance with the law, at any
time it is occupied or open for business. A person who
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operates a massage establishment or his or her employee,
agent, partner, director, officer, stockholder, or trustee is
in violation of the provisions of this section if he/she
refuses to permit such lawful inspection of the premises at
any time it is occupied or open for business.
Sec. 9-341. Suspension or Revocation of License.
After an investigation, notice and hearing, the Police Chief
shall suspend or revoke an existing massage establishment
license or massage practitioner license, as shall be found
necessary to ensure the preservation of the public health and
safety, if the evidence presented establishes that one or more
of the following conditions exist:
(a) The building, structure, equipment and location used by
the business or practitioner fails to comply with the
requirements or fails to meet the standards of the
health, zoning, fire and safety laws of the State of
California or of the ordinances of the City of Costa
Mesa;
(b) The licensee, his or her employee,. agent, partner,
director, officer, stockholder, or trustee has knowingly
made any false, misleading or fraudulent statement of
material facts in the application for a license, or in
any report or record required .to be filed with the Police
Department or other department of the City;
(c) The licensee has had any type of massage establishment
license, adult business license or massage practitioner
license revoked by any public entity after the date of
issuance of the massage establishment license or massage
practitioner license;
(d) That the licensee, or any agent or employee of the
licensee, has been convicted in a court of competent
jurisdiction of any crime in conjunction with or as a
result of the operation of the subject massage
establishment or the provision of massage services, or of
any sex-related crime or other crime of moral turpitude,
after the date of issuance of the massage business
license or massage practitioner license;
(e) That a massage establishment has been used as a place
where sexual intercourse, sodomy, oral copulation,
masturbation, - prostitution, assignation or other
"specified sexual activities," as defined in Section 13-
860.2 of Title 13, occur or have occurred;
(f) That the subject massage establishment has employed
minors under eighteen (18) years of age;
17
(g) That the licensee, his or her employee, agent, partner,
director, officer, stockholder, or trustee has violated
any provision of this Article; or
(h) That any conditional use permit or similar zoning
approval required for the use has been suspended or
revoked.
Sec. 9-342. Non -Transferability of Massage Establishment
License and Practitioner License.
A licensee shall not transfer a massage establishment license
or massage practitioner license to another, nor shall a
licensee operate a massage establishment under the authority
of a license at any place other than the address designated in
the application. Any massage establishment license or massage
practitioner license which is transferred to another person or
to another location shall immediately become null and void.
Sec. 9-343. Application to Existing Businesses and
Practitioners.
Any massage establishment or massage practitioner lawfully
operating on the effective date of this article, that does not
comply with the requirements of this article, shall be deemed
a non -conforming use. A non -conforming use will be permitted
to continue for a period of two years, with a possible one
year extension, for a total time period not to exceed three
years, unless sooner terminated for any reason or voluntarily
discontinued for a period of thirty (30) days or more. An
application for a one year extension for extenuating
circumstances may be granted by the Planning Commission upon
a convincing showing of extreme financial or practical
hardship by the applicant. Such nonconforming uses shall not
be increased, enlarged, extended or altered without conforming
with the requirements of this article.
Sec. 9-344. Regulations Non -Exclusive.
The regulations set forth in this Article are not intended to
be exclusive, and compliance therewith shall not excuse
noncompliance with any other regulations pertaining to the
operation of massage businesses as adopted by the City Council
of the City of Costa Mesa.
Sec. 9-345. Violations/Penalties.
Any person, whether as principal, employee, agent, partner,
director, officer, stockholder, or trustee or otherwise,
violating or causing the violation of any of the provisions of
this chapter shall be guilty of a misdemeanor, and any
conviction thereof shall be punishable by a fine of not more
18
than one thousand dollars ($1,000.00) or by imprisonment for
not more than six (6) months, or by both such fine and
imprisonment. Any violation of the provisions of this Article
shall constitute a separate offense for each and every day
during which such violation is committed or continued.
Sec. 9-346. Public Nuisance.
In addition to the penalties set forth above, any massage
establishment which is operating in violation of this Article
or any provision thereof is hereby declared to constitute a
public nuisance and, as such, may be abated or enjoined from
further operation. All costs to abate such public nuisance,
including attorneys' fees and court costs, shall be paid by
the licensee of the massage establishment pursuant to Section
13-387.
Section 3. Chapter IV of Title 9 of the Costa Mesa
Municipal Code is hereby amended to read as follows:
Chapter IV. Adult Business Regulations.
Sec. 9-450. Definitions.
The following words and phrases shall, for the purposes of
this chapter, be defined as follows, unless it is clearly
apparent from the context that another meaning is intended:
(a) Adult Business. A business which is conducted
exclusively for the patronage of adults and as to which
minors are specifically excluded from patronage, either
by law and/or by the operators of such business, and
which is characterized by an emphasis upon "specified
sexual activities" and/or "specified anatomical areas."
"Adult Business" also means and includes any adult
arcade, adult bookstore/ novelty store, adult cabaret,
adult dance studio, adult motel, adult motion picture
theater, adult theater, escort/dating/modeling service,
sexual encounter establishment, and model studio, as
these terms are defined in Section 13-860.2 of Title 13
of this Code, and any business or establishment that
offers its patrons entertainment or services which
involve, depict, describe or relate to "specified sexual
activities" and/or "specified anatomical areas" as
defined in Section 13-860.2 of Title 13.
(b) Escort. Any person who, for any form of consideration
agrees or offers to act as a companion, guide, or date
for another person or persons.
(c) Establishment of an Adult Business. Includes any of the
following:
19
(1) The opening or commencement of any such business as
a new business;
(2) The conversion of an existing business, whether or
not an adult business, to any of the adult
businesses defined herein;
(3) The addition of any of the adult businesses defined
herein to any other existing adult business; or
(4) The relocation of any such business.
(d) Model. Any person who, for compensation or gratuity, is
available for conversation or poses to be observed,
viewed, sketched, painted, drawn, sculpted, photographed,
or otherwise similarly depicted, in the nude or seminude.
(e) Nude/Seminude. A person completely without clothing or
covering, or with partial clothing or covering but with
any exposure of "specified anatomical areas," as defined
in Section 13-860.2 of the Costa Mesa Municipal Code.
Seminude shall also include a person with partial
clothing to include lingerie or similar clothing where
"specified anatomical areas" are exposed.
(f) Off -premises and/or outcall. Any business where the
primary services or entertainment are provided at a
location or locations other than the premises of the
subject business.
(g) Person. Any individual, firm, association, partnership,
corporation, joint venture, trust or combination of
individuals or persons.
(h) Practitioner. Any escort, model or any person who
personally performs or provides off -premises services of
a regulated adult business, as defined in this chapter.
(i) Substantial Enlargement. An increase, over the lifetime
of the business, of more than 10% or one hundred (100)
square feet, whichever is less, in the portion of the
floor area of a business which is devoted to products,
services or entertainment with an emphasis on material
depicting, describing or relating to "specified sexual
activities" and/or "specified anatomical areas."
(j) Transfer of Ownership or Control of a Adult Business.
Includes any of the following:
(1) The sale, lease or sublease of the business;
20
3
(2) The transfer of securities which constitute a
controlling interest in the business, whether by
sale, exchange or similar means;
(3) The establishment of a trust, gift or other similar
legal devise which transfers ownership or control
of the business, except for transfer by bequest or
other operation of law upon the death of a person
possessing the ownership or control.
Sec. 9-451. Exceptions to Chapter.
This chapter shall not apply to:
(a) Any treatment administered in good faith in the course of
the practice of any healing art or profession by any
person holding a valid license or certificate issued by
the State of California to practice any such art or
profession under the provisions of the Business and
Professions Code of California or of any other law of
this State.
(b) Massage administered at a massage establishment or by a
massage practitioner holding a valid current license
issued pursuant to the provisions of Article 22 of this
Title.
Sec. 9-452. Zoning Requirements.
In addition to the requirements of this chapter, all adult
businesses subject to this chapter, except off -premises
escort/dating/modeling services, shall comply with the
requirements set forth in Article 2, Chapter XIII, of Title 13
of this Code...
Sec. 9-453. Adult Business License Required.
(a) It shall be unlawful for any person to engage in, conduct
or carry on, or to permit any person to engage in,
conduct or carry on, in or upon any premises within the
City of Costa Mesa, the activities of a regulated adult
business without a valid license issued for the specific
activity pursuant to the provisions of this chapter for
each and every such regulated adult business.
(b) The requirement for an adult business license shall be in
addition to any conditional use permit or similar zoning
approval required by Title 13. An adult business license
may not be issued until the required conditional use
permit or similar zoning approval has been approved.
21
Sec. 9-454. License Required for Each Location; Display of
License.
A separate adult business license is required for each
location within the boundaries of the City of Costa Mesa at
which a regulated adult business is to be established and/or
arrangements for a practitioner are made, or where services
are provided, or where compensation for a practitioner is
paid. The requirements of this chapter for an adult business
license are separate and in addition to a business license, or
Business Tax Registration Certificate, required under Chapter
I of this Title. Every regulated adult business shall display
its adult business license prominently in an area open to the
public at each such location at all times when the location is
open for business.
Sec. 9-455. Transfer of Ownership or Control.
Upon the transfer of ownership or control of an adult
business, the adult business license shall immediately be null
and void. In order for the adult business to continue
operating, a new application and license is required.
Sec. 9-456. Change of Location or Name.
(a) Upon the change of location of the premises where an
adult business is conducted, the adult business license
shall immediately be null and void. In order for the
adult business to operate at the new location, a new
application and license is required.
(b) No permittee shall operate a regulated adult
entertainment business under any name or designation not
specif ied in the license... Upon the change of name of the
adult business, the adult business license shall
immediately be null and void. In order for the adult
business to continue operating, a new application and
license is required.
Sec. 9-457. Term of Adult Business License.
An approved adult business license shall be valid for one
year, and shall be renewed on an annual basis on the
anniversary date of the original application. Application for
renewal of an unrevoked adult business license shall be made
at least thirty (30) days prior to the expiration date of the
current, valid license.
Sec. 9-458. Application for Adult Business License.
(a) An applicant for issuance or renewal of an adult business
license shall file a written, signed and verified
(b)
application or renewal application on a form provided by
the Police Department. Each application shall be
accompanied by a non-refundable fee for filing or renewal
in an amount determined by resolution of the City
Council, which fees will be used to defray the costs of
investigation, inspection and processing of such
application. Such fee shall not exceed the reasonable
cost of investigation, inspection and processing of such
application. License fees required under this chapter
shall be in addition to any license, permit or fee
required under any other chapter or title of this Code.
An application for an adult business license shall
contain the following information:
(1) The name and permanent address of the applicant.
(2) The name and business address of
the applicant is a corporation,
exactly as set forth in
Incorporation and the applicant
and residence address of each
directors and each stockholder (
twenty-five percent (25%) of i
corporation. If the applicant
the application shall show the
address of each of the members,
partners;
the applicant. If
the name shall be
its Articles of
shall show the name
of the officers,
)wning no less than
:he stock of the
is a partnership,
name and residence
including limited
(3) A detailed description of the manner of providing
the proposed merchandise and/or services, including
types of merchandise and/or services and the number
of persons engaged in providing the merchandise
and/or services;
(4) The name of the proposed business;
(5) Hours of operation;
(6) A location, address and floor plan showing where
the specific service uses are proposed to be
conducted within the building, and for outcall
services, a statement of the location and address
of the premises where services are arranged or
scheduled and a description of the process for
providing outcall services and description of the
off -premise locations for such services;
(7) The name or names of the person or persons having
the management or supervision of applicant's
business and of any services;
(8 ) A statement containing such information as may be
required by the Police Chief to make the necessary
23
determination in accordance with subsections 9-
459(a)(3),
-
459(a)(3), (7) and (8) .
(9) For a renewal application, applicant in addition
shall indicate any changes since the filing of the
initial application.
Sec. 9-459. Decision of Police Chief.
(a) After an investigation, the Police Chief or his or her
designee shall approve the issuance or renewal of a
license unless he or she finds one or more of the
following to be true:
(1) That the building, structure, equipment and
location used 'by the business for which a license
is required herein does not comply with the
requirements and standards of the health, zoning,
fire and safety laws of the State of California and
the City of Costa Mesa.
(2) That the applicant, his or her employee, agent,
partner, director, officer, stockholder or trustee
has knowingly made any false, misleading or
fraudulent statement of material fact in the
application for a license or in any report or
record required to be filed with the Police
Department or other department of the City.
(3) That the applicant or his/her spouse or live-in
companion has had any type of adult business
license, practitioner license or massage license
revoked by any public entity within two (2) years
of the date of the application;
(4) That on the date that the business for which a
license is required herein commences, and
thereafter, there will be no responsible adult on
the premises to act as manager at all times during
which the business is open;
(5) That a conditional use permit has not been issued,
or has been denied, suspended or revoked for the
proposed use; or
(6) That an applicant or his or her employee is under
eighteen (18) years of age.
(7) That an applicant or any agent or employee of the
applicant has been convicted in a court of
competent jurisdiction of any crime in conjunction
with or as a result of the operation of an adult
24
business or any sex-related crime or other crime of
moral turpitude during or prior to the filing of
the application.
(8) The applicant or his or her, employee has engaged in
disqualifying conduct as follows:
a. Within five years immediately preceding the
date of filing of the application for a
license under this Chapter has been convicted
in a court of competent jurisdiction of any
misdemeanor or felony offense which relates
directly to the operation of a massage
establishment, whether as a massage
establishment owner or operator, or as a
massage technician or professional, or any
felony, the commission of which occurred on
the premises of a massage establishment; or
b. Within five years immediately preceding the
date of the filing of the application for a
license under this Chapter has had any massage
establishment, or practitioner license or
permit, which was issued by the State of
California, or by any county or municipality,
revoked; or
c. Within five years immediately preceding the
date of the filing of the application for a
license under this Chapter has been convicted
in a court of competent jurisdiction of any
violation of Section 266h, 2661, 315, 316,
318, or subdivision (b) of Section 647 of the
California Penal Code; or any offense in a
jurisdiction outside the State of California
which is the equivalent of any of the
aforesaid offenses.
(b) The decision of the Police Chief regarding any license
application under this chapter shall be issued within
sixty (60) days of the date of the filing of a complete
application unless the Police Chief has set the matter
for hearing before the City Council. Such hearing before
City Council must be held and a decision rendered within
sixty (60) days from the date of filing of a complete
application, unless the matter is continued at the
request of the applicant. Any decision of the Police
Chief may be appealed to the City Council within seven
(7) days of the decision. Any appeal shall be processed
in accordance with procedures set forth in Title 2 of
this Code.
25
Sec. 9-460. Practitioner License Required.
It shall be unlawful for any person to act as a practitioner
unless such person holds a valid practitioner license issued
pursuant to this chapter by the City of Costa Mesa. Such
license shall be issued to the address of the employer who
must also hold a valid regulated adult business license issued
by the City of Costa Mesa.
Sec. 9-461. Term of Practitioner License.
The term of the practitioner license shall be the same as the
adult business license held by his or her employer pursuant to
Section 9-456. Application for renewal of an unrevoked
practitioner license shall be made at least thirty (30) days
prior to the expiration date of the current, valid license.
Sec. 9-462. Application for Practitioner License.
(a) Any person desiring to obtain a license to act as a
practitioner shall make application to the Chief of
Police. An unrevoked practitioner license may be renewed
for a one-year period on written application to the Chief
of Police made at least thirty (30) days prior to the
expiration date of the current, valid license. Prior to
submitting such application for a license or renewal of
a license, a nonrefundable fee, as established by
resolution of the City Council, shall be paid to defray
the cost of investigation and report required by this
chapter. License fees required under this chapter shall
be in addition to any license, permit or fee required
under any other chapter of this Code.
(b) The application for license does not authorize acting as
a practitioner until such license has been granted.
(c) Each applicant for a practitioner license or renewal
thereof shall furnish the information required by
subsections 9-458(b)(1)1 (2), (3), (8) and (9) of this
chapter, and shall in addition, furnish the following
information:
(1) Satisfactory evidence that the applicant has been
offered employment by a regulated adult business
holding a valid adult business license issued by
the Chief of Police, including name and address of
prospective employer and that such employment is
contingent upon the issuance of said license.
(2) Such other identification and information as the
Chief of Police may require in order to verify the
26
matters required to be set forth in the
application.
Sec. 9-463. Practitioner Identification Card.
Each practitioner licensee shall be issued an identification
card which will contain a photograph of the practitioner
licensee and contain information to identify that the person
is holding a practitioner license from the City. The licensee
shall have such card in his or her possession at all times
when acting as a practitioner and shall produce same for
inspection upon request by any police officer. Each
practitioner shall immediately surrender to the Chief of
Police any license identification card issued by him or her
upon suspension, revocation or expiration of said license or
upon leaving employment as a practitioner.
Sec. 9-464 Inspection.
A licensee or his or her employee, agent, partner, director,
officer, stockholder, or trustee shall permit representatives
of the Police Department, Health Department, Fire Department,
Development Services Department, or other City Departments or
agencies, to . inspect the premises of an adult business for the
purpose of ensuring compliance with'the law, at any time it is
occupied or open for business. A person who operates an adult
business or his or her employee, agent, partner, director,
officer, stockholder, or trustee is in violation of the
provisions of this section if he/she refuses to permit such
lawful inspection of the premises at any time it is occupied
or open for business.
Sec. 9-465 Suspension or Revocation of License.
After an investigation, notice and hearing, the Police Chief
shall suspend or revoke an existing adult business license or
practitioner license, as shall be found necessary to assure
the preservation of the public health and safety, if the
evidence presented establishes that one or more of the
following conditions exist:
(a) The building, structure, equipment and location used by
the business or practitioner fails to comply with the
requirements or fails to meet the standards of the
health, zoning, fire and safety laws of the State of
California or of the ordinances of the City of Costa
Mesa;
(b) The licensee, his or her employee, agent, partner,
director, officer, stockholder, or trustee has knowingly
made any false, misleading or_ fraudulent statement of
material facts in the application for a license, or in
27
e � 1
7
any report or record required to be filed with the
Police, Sheriff or other department of the City;
(c) The licensee has had any type of adult business license,
practitioner license or massage license revoked by any
public entity within two (2) years of the date the
license was issued;
(d) There is not a responsible adult on the premises to act
as a manager at all times in which the business is open
or operating;
(e) That the licensee, any agent or employee of the licensee
has been convicted in a court of competent jurisdiction
of any crime in conjunction with or as a result of the
operation of the subject adult business or any sex-
related crime or other crime of moral turpitude after the
date of issuance of the adult business license for said
business;
(f) That an adult business has been used as a place where
sexual intercourse, sodomy, oral copulation,
masturbation, prostitution, assignation or other
"specified sexual activities," as defined in Section 13-
860.2 of Title 13, occur or have occurred;
(g) That the subject adult business has employed minors under
eighteen (18) years of age;
(h) That the licensee, his or her employee, agent, partner,
director, officer, stockholder, or trustee has violated
any provision of this ordinance; or
(i)- That any conditional use permit or similar zoning
approval required for the use has been suspended or
revoked.
Sec. 9-466. Non -Transferability of Adult Business License and
Practitioner License.
A licensee shall not transfer an adult business license or
practitioner license to another, nor shall a licensee operate
an adult business under the authority of a license at any
place other than the address designated in the application.
Any adult business license or practitioner license which is
transferred to another person or to another location shall
immediately become null and void.
Sec. 9-467. Regulations Non -Exclusive.
The regulations set forth in this chapter are not intended to
be exclusive and compliance therewith shall not excuse
28
e
noncompliance with any other regulations pertaining to the
operation of adult businesses as adopted by the City Council
of the City of Costa'Mesa.
Sec. 9-468. Violations/Penalties.
Any person, whether as principal, employee, agent, partner,
director, officer, stockholder, or trustee or otherwise,
violating or causing the violation of any of the provisions of
this chapter shall be guilty of a misdemeanor, and any
conviction thereof shall be punishable by a fine of not more
than one thousand dollars ($1,000.00) or by imprisonment for
not more than six (6) months, or by both such fine and
imprisonment. Any violation of the provisions of this chapter
shall constitute a separate offense for each and every day
during which such violation is committed or continued.
Sec. 9-469. Public Nuisance.
In addition to the penalties set forth above, any adult
business which is operating in violation of this chapter or
any provision thereof is hereby declared to constitute a
public nuisance and, as such, may be abated or enjoined from
further operation. All costs to abate such public nuisance,
including attorneys' fees and court costs, shall be paid by
the licensee of the adult business pursuant to Section 13-387.
Sec. 9-470. Other Regulations.
(a) The regulations in this chapter shall be in addition to
the regulations specified elsewhere in this Title
provided, however, that if any of the regulations
specified in this chapter differ from any of the
corresponding regulations specified elsewhere in this
Title, then in such case the provisions of this chapter
shall govern.
(b) Any adult business lawfully operating on the effective
date of this chapter that is in violation of this
chapter, shall be deemed a nonconforming use. A non-
conforming adult business will be permitted to continue
for a period of one year, with a possible one year
extension, for a total time period not to exceed two
years, unless sooner terminated for any reason or
voluntarily discontinued for a period of thirty (3 0) days
or more. An application for a one year extension for
extenuating circumstances may be granted by City Council
only upon a convincing showing of extreme financial
hardship by the adult business. Such nonconforming adult
business shall not be increased, enlarged, extended or
altered .except that the use may be changed to a
conforming use. If two (2) or more adult businesses are
within one thousand (1,000) feet of one another and
29
otherwise in a permissible location, the adult business
which was first established and has continually operated
at the particular location is the conforming use and the
later established business(es) is non -conforming.
(c) Any adult business lawfully operating as a conforming use
is not rendered a non -conforming use by the location,
subsequent to the grant or renewal of an adult business
permit and/or license, of a school, public park,
religious institution, or public building likely to be
frequented by minors within 1,000 feet and/or residential
use within five hundred (500) feet of the adult business.
This provision applies only to the renewal of a valid
permit and/or license and does not apply when an
application for a permit and/or license is submitted
after a permit and/or license has expired or has been
revoked.
Section 4. Article 2 of Article XIII of Title 13 the Costa
Mesa Municipal Code is hereby amended to read as follows:
Article 2. ADULT BUSINESS REGULATIONS
Sec. 13-860.1 Purpose and Intent.
It is the purpose of this article to regulate sexually
oriented adult businesses to promote the health, safety and
general welfare of the citizens of the City of Costa Mesa.
The provisions of this article have neither the purpose nor
the effect of imposing a limitation or restriction on the
content of any communicative materials, including sexually
oriented- materials.
Sec. 13-860.2 Definitions.
The following words and phrases shall, for the purposes of
this article, be defined as follows, unless it is clearly
apparent from the context that another meaning is intended:
(a) Adult Arcade. An establishment where, for any form of
consideration, one or more motion picture projectors,
video cassette players, slide projectors or similar
machines, for viewing by five or fewer persons each, are
used on a regular and substantial basis to show films,
motion pictures, video cassettes, slides or other
photographic reproductions characterized by an emphasis
on material depicting, describing or relating to
"specified sexual activities" and/or "specified
anatomical areas."
(b) Adult Bookstore/Novelty Store. An establishment which,
on a regular and substantial basis, sells or rents, or
30
offers for sale or rental, for any form of consideration,
of any one or more of the following:
(1) Books, magazines, periodicals or other printed
matter, or photographs, films, motion pictures,
video cassettes,. slides or other visual
representations which are characterized by an
emphasis on material depicting, describing or
relating to "specified sexual activities" and/or
"specified anatomical areas;" or
(2) Instruments, devices or paraphernalia which are
designed for use in connection with "specified
sexual activities."
(c) Adult Business. A business which is conducted
exclusively for the patronage of adults and as to which
minors are specifically excluded from patronage, either
by law and/or by the operators of such business, and
which is characterized by an emphasis on "specified
sexual activities" and/or "specified anatomical areas."
"Adult Business" also means and includes any adult
arcade, adult bookstore/ novelty store, adult cabaret,
adult dance studio, adult hotel or motel, adult motion
picture theater, adult theater, sexual encounter
establishment, model studio, and any other business or
establishment that, on a regular and substantial basis,
offers its patrons entertainment or services which
involve, depict, describe or relate to "specified sexual
activities" and/or "specified anatomical areas."
(d) Adult Cabaret. A nightclub, restaurant or similar
establishment which, for any form of consideration, and
on aregular and substantial basis, features live
performances by topless and/or bottomless dancers, dance
instructors, go-go dancers, exotic dancers, strippers or
entertainers or similar performances characterized by an
emphasis on "specified anatomical areas" and/or by
"specified sexual activities."
(e) Adult Dance Studio. Any business or establishment which
provides for members of the public a partner for dance
where the partner, or the dance, is distinguished or
characterized by an emphasis on matter involving,
depicting, describing, or relating to "specified sexual
activities" and/or "specified anatomical areas."
(f) Adult Hotel or Motel. A hotel, motel or similar
establishment offering public accommodations for any form
of consideration which, on a regular and substantial
basis, provides patrons with closed-circuit television
transmissions, films, motion pictures, video cassettes,
31
slides or other photographic reproductions characterized
by an emphasis on material depicting, describing or
relating to "specified sexual activities" and/or
"specified anatomical areas;" and/or a motel, hotel or
similar establishment which rents, leases or lets any
room for less than a six -hour period, or rents, leases or
lets any single room more than twice in a 24-hour period.
(g) Adult Motion Picture Theater. An establishment which,
for any form of consideration, is used on a regular and
substantial basis to show films, motion pictures, video
cassettes, slides or similar photographic reproductions
to more than five persons, and where such material is
characterized by an emphasis on material depicting,
describing or relating to "specified sexual activities"
and/or "specified anatomical areas."
(h) Adult Novelty Store. See Adult Bookstore/ Novelty Store.
(i) Adult Theater. A theater, concert hall, auditorium or
similar establishment which, for any form of
consideration, and on a regular and substantial basis,
features live performances characterized by an emphasis
on "specified sexual activities" and/or "specified
anatomical areas."
(j) Employee. A person who works or performs in an adult
business regardless of whether or not said person is paid
a salary, wage or other compensation by said business.
(k) Establishment of an Adult Business. Includes any of the
following:
(1) The opening or commencement of any such
business as a new business;
(2) The conversion of an existing business,
whether or not an adult business, to any of
the adult businesses defined herein;
(3) The addition of any of the adult businesses
defined herein to any other existing adult
business; or
(4) The relocation of any such business.
(1) Model. Any person who, for compensation or gratuity, is
available for conversation or poses to be observed,
viewed, sketched, painted, drawn, sculpted, photographed,
or otherwise similarly depicted, in the nude or seminude.
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(m) Model Studio.. Any premises where there is conducted the
business of furnishing, providing or procuring a model or
models who pose in the nude or seminude for the purposes
of being observed, conversed with, or viewed by any
person or of being sketched, painted, drawn, sculpted,
photographed, or otherwise similarly depicted for persons
who pay a fee, or other consideration, compensation, or
gratuity, for the right or opportunity to converse with
or so depict a figure model, or for admission to or for
permission to remain upon or as a condition of remaining
upon the premises.
(n) Nude/Seminude. A person completely without clothing or
covering, or with partial clothing or covering but with
any exposure of "specified anatomical areas," as defined
in this article. Seminude shall also include a person
with partial clothing to include lingerie or similar
clothing where "specified anatomical areas" are exposed.
(o) Off -premises. Any business where the primary services or
entertainment are provided at a location or locations
other than the premises of the subject business.
(p) Person. Any individual, firm, association, partnership,
corporation, joint venture, trust or combination of
individuals or persons.
(q) Public Building. A building or facility owned, leased or
operated by a public agency, including but not limited to
a city, the County, the State or the Federal government.
(r) Public Park. A park, playground, swimming pool, beach,
pier, athletic field, or similar recreational facility
within.the City and/or adjacent cities and County which
is under the control, operation or management of the
City, adjacent cities, the County or the State.
(s) Regular and Substantial Basis. An activity or
performance shall be deemed to be on a regular or
substantial basis when it constitutes more than 25% of
the total performance time, stock -in -trade, revenue,
floor space, advertisement or similar element of the
business. For purposes of this definition, revenue shall
include gross revenue generated by the business,
including revenue received by performers and others who
work as independent contractors. For purposes of this
definition, the floor space devoted to a regulated
activity shall include all the area devoted to the
activity, including but not limited to, display area,
sales area,.performance areas, viewing areas, dressing
rooms, and all aisles and pathways between and within
such areas.
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(t) Religious Institution. A structure which is used
primarily for religious worship and related religious
activities within the City and/or adjacent cities and
County.
(u) Residential Use. Any lot located within the R1, R2 -MD,
R2 -HD, R3, PDR -LD, PDR -MD, PDR -HD and PDR -NCM Zones of
the City and similar residential uses in adjacent cities
and County.
(v) School. Any child care facility, or an institution of
learning for minors, whether public or private, which
offers instruction in those courses of study required by
the California Education Code or which is maintained
pursuant to standards set by the State Board of
Education. This definition includes a nursery school,
kindergarten, elementary school, middle school, junior
high school, senior high school or any special
institution of education within the City and/or within
adjacent cities and County, but does not include a
vocational or professional institution of higher
education, including a community or junior college,
college or university.
(w) Sexual Encounter Establishment. An establishment, other
than a hotel, motel or similar establishment offering
public accommodations which, for any form of
consideration, provides a place where two or more persons
may congregate, associate or consort in connection with
"specified sexual activities" and/or the exposure of
"specified anatomical areas." This definition does not
include an- establishment where a medical practitioner,
psychologist, psychiatrist or similar professional person
licensed by the State engages in sexual therapy.
(x) Specified Anatomical Areas. Includes any of the
following:
(1) Less than completely and opaquely covered human
genitals, pubic region, buttocks, anus, or female
breasts below a point immediately above the top of
the areola; or
(2) Human male genitals in a discernably turgid state,
even if completely and opaquely covered.
(y) Specified Sexual Activities. Includes any of the
following:
(1) The fondling or other erotic touching of human
genitals, pubic region, buttocks, anus, or female
breasts;
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(2) Sex acts, actual or simulated, including
intercourse, oral copulation, anal intercourse,
oral/anal copulation, bestiality, flagellation or
torture in the context of a sexual relationship,
and any of the following depicted sexually oriented
acts or conduct: anilingus, cunnilingus, fellatio,
necrophilia, pederasty, pedophilia, piquerism,
sapphism, zooerasty;
(3) Masturbation of human or animal, actual or
simulated;
(4) Clearly depicted specified anatomical areas in a
state of sexual arousal, stimulation or tumescence;
(5) Human or animal masturbation, sodomy, oral
copulation, coitus, ejaculation.
(6) Excretory functions, urination, menstruation,
vaginal or anal irrigation as part of or in
connection with any of the activities described in
subdivisions (1) through (5) of this subsection.
(z) Substantial Enlargement. An increase, over the lifetime
of the business, of more than 10% or one hundred (100)
square feet, whichever is less, in the portion of the
floor area of a business which is devoted to products,
services or entertainment with an emphasis on material
depicting, describing or relating to "specified sexual
activities" and/or "specified anatomical areas."
(aa) Transfer of Ownership or Control of an Adult Business.
Includes any of the following:
(1) The sale, lease or sublease of the business;
(2) The transfer of securities which constitute a
controlling interest in the business, whether by
sale, exchange or similar means;
(3) The establishment of a trust, gift or other similar
legal devise which transfers ownership or control
of the business, except for transfer by bequest or
other operation of law upon the death of a person
possessing the ownership or control.
Sec. 13-860.3. Exceptions to Article.
This article shall not apply to any of the following
businesses or activities:
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(a) Any massage establishment or massage practitioner holding
a valid current license issued pursuant to the provisions
of Title 9 of this Code.
(b) Any "off -premises" massage, escort or similar service
holding a valid current license issued pursuant to the
provisions of Title 9 of this Code.
(c) Any treatment administered in good faith in the course of
the practice of any healing art or profession by any
person holding a valid license or certificate issued by
the State of California to practice any such art or
profession under the provisions of the Business and
Professions Code of California or of any other law of
this State.
Sec. 13-860.4 Establishment of Adult Business.
The establishment of an adult business shall be permitted only
in the CL, C1, C2, C1 -S or PDC Commercial Zones and shall be
subject to the following regulations.
(a) Each such adult business must, prior to commencement or
continuation or substantial enlargement of such business,
first apply for and receive from the Planning Commission
a conditional use permit pursuant to this article.
(b) Each such adult business must, prior to commencement or
continuation or substantial enlargement of such business,
first apply for and receive an adult business license.
(c) The Planning Commission, or the City Council upon appeal,
shall issue such conditional use permit if that body
finds that the proposed facility or use complies with the
regulations specified in this article, and complies with
all of the following restrictions:
(1) Not within five hundred (500) feet of any area
zoned for and/or lawfully operated as a residential
use;
(2) Not within one thousand (1,000) feet of any other
adult business, and
(3) Not within one thousand (1,000) feet of any school,
public park, religious institution, or public
building likely to be frequented by minors.
(4) Not within any redevelopment area.
(d) Each such facility must comply with all other applicable
zoning and land use regulations in this Code.
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Sec. 13-860.5 Measurement of Distance.
Distance between any two adult businesses shall be measured in
a straight line, without regard to the boundaries of the City
and to intervening structures, from the closest property line
of the lot of each business. The distance between any adult
business and any residential use, religious institution,
school, public park, or public building likely to be
frequented by minors shall also be measured in a straight
line, without regard to the boundaries of the City and to
intervening structures, from the nearest portion of the
property line of the lot where such adult business is
conducted, to the nearest property line of a religious
institution, school, public park, public building, residential
use, or any establishment likely to be frequented by minors.
Sec. 13-860.6 Misdemeanor Offenses.
In addition ,to all other offenses specified in this Code,
County ordinances and State statutes, an adult business shall
be subject to the following restrictions:
(a) It shall be unlawful and a misdemeanor to establish,
substantially enlarge or operate an adult business within
the City of Costa Mesa without first complying with this
article;
(b) It shall be unlawful and a misdemeanor to operate or
cause to be operated an adult business outside of the
commercial zones specified in this article;
(c) It shall be unlawful and a misdemeanor to operate or
cause to be operated an adult business within one
thousand (1,000) feet of any religious institution,
school, public park, or public building likely to be
frequented by minors, or within five hundred (500) feet
of any area zoned for and/or lawfully operated as a
residential use.
(d) It shall be unlawful and a misdemeanor to operate or
cause to be operated an adult business within 1,000 feet
of another adult business.
(e) It shall be unlawful and a misdemeanor to cause or permit
the operation, establishment, or maintenance of more than
one adult business within the same building, structure,
or portion thereof, or to cause the increase of floor
area of any adult business in any building, structure or
portion thereof containing another adult business.
(f) It is a defense to prosecution under this section if a
person appearing in a state of nudity did so in a
modeling class operated:
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(1) by a proprietary school, licensed by the State of
California; a college, junior college, or
university supported entirely or partly by
taxation;
(2) by a private college or university which maintains
and operates educational programs in which credits
are transferable to a college, junior college, or
university supported entirely or partly by
taxation; or
(3) in a structure:
a. which has no sign visible from the exterior of
the structure and no other advertising that
indicates a nude person is available for
viewing; and
b. where, in order to participate in a class a
student must enroll at least three (3) days in
advance of the class; and
C. where no more than one nude model is on the
premises at any one time.
Sec. 13-861.1 Development and Operational Standards.
In addition to the base zoning requirements governing
conditional use permits, the following additional requirements
shall be satisfied by adult businesses. Such additional
requirements shall be included in any approved conditional use
permit. -.
(a) Maximum occupancy load, fire exits, aisles and fire
equipment shall be regulated, designed and provided in
accordance with the Fire Department and building
regulations and standards adopted by the City of Costa
Mesa.
(b) No adult business shall be operated in any manner that
permits the observation of any material depicting,
describing or relating to "specified sexual activities"
and/or "specified anatomical areas" from any public way
or from any location outside the building or area of such
establishment. This provision shall apply to any
display, decoration, sign, show window or other opening.
(c) Lighting in Parking Lots. Lighting shall be provided to
illuminate all off-street parking areas serving such use
for the purpose of increasing the personal safety of
store patrons and reducing the incidents of vandalism and
theft. Said lighting shall provide a level of
38
illumination not less than one (1) footcandle, measured
at the surface of the pavement, at all areas of the
parking lot. Said lighting shall be shown on the
required plot plans and shall be reviewed and approved by
the Development Services Department.
(d) Amplified Sound. No loudspeakers or sound equipment
shall be used by an adult business for the amplification
of sound to a level discernible by the public beyond the
walls of the building in which such use is conducted or
which violates any noise restrictions as may be adopted
by the City of Costa Mesa.
(e) The building entrance to an adult business shall be
clearly and legibly posted with a notice indicating that
minors are precluded from entering the premises. Said
notices shall be constructed and posted to the
satisfaction of the Development Services Director.
(f) Adult Arcades.
(1) It is unlawful to maintain, operate or manage or to
permit to be maintained, operated, or managed any
adult arcade in which the viewing areas are not
visible from a continuous main aisle or are
obscured by a curtain, door, wall, or other
enclosure. For purposes of this subsection,
"viewing area" means the area where a patron - or
customer would ordinarily be positioned while
watching the performance, picture, show, or film.
(2) It is unlawful for more than one person at a time
to occupy any individually partitioned viewing area
or booth.
(3) It is unlawful to create, maintain or permit to be
maintained any holes or other openings between any
two booths or individual viewing areas for the
purpose of providing viewing or physical access
between the booths or individual viewing areas.
(g) Signs. All on-site signage shall conform to the relevant
provisions of the Costa Mesa Municipal Code regarding
signs.
(h) Sale/Serving of Alcohol. It is unlawful to sell, serve
or permit the consumption of alcohol in any portion of a
structure occupied by an adult business.
(i) Age Restrictions. It is unlawful to permit patrons or
employees under the age of eighteen (18) years in any
portion of a structure occupied by an adult business.
39
(j) Time of Operation. No adult business shall be open or
operating during the hours from 10:00 p.m. to 8:00 a.m.
(k) Physical Contact. No model, dancer, entertainer or other
performer shall have physical contact with any patron and
no patron shall have physical contact with any model,
dancer, entertainer or other performer while on the
premises of an adult business.
Sec. 13-861.2 Time Limits for Action on Conditional Use Permit.
(a) An application for a conditional use permit shall be
approved, approved with conditions or denied by the
Planning Commission within sixty (60) days of its being
accepted as a complete application by the Development
Services Department. Any proceeding to appeal such
decision to the City Council shall be filed with the City
Clerk within seven (7) days of such decision. An appeal
shall be processed in accordance with procedures set
forth in Section 2-300 et seq. of this Code. Any
proceeding to seek judicial review of any City Council
decision shall be brought in accordance with the
provisions of the Costa Mesa Municipal Code, California
Code of Civil Procedure 1094.5 and applicable State law.
(b) The time limits specified herein may be extended or
waived with consent of the applicant.
Sec. 13-861.3 Application Process.
(a) Application for conditional use permits under this
article shall be made on forms provided by the
Development Services Department. Information provided
shall include -the names and current places of residence
of all owners of the property on which the adult business
is to be located, all owners of the adult business, and
any managers of the adult business who will be
responsible for the adult business during the absence of
the owners, and such other information as may be
requested by the Development Services Department.
(b) The Planning Commission decision on an application shall
be subject to an appeal to City Council pursuant to
procedures set forth in Title 2 of this Code.
(c) Notices of the hearing for applications for conditional
use permits under the provisions of this article shall be
mailed to all owners.of property within a radius of one
thousand (1,000) feet of the external boundaries of the
property described in said application not less than ten
(10) days prior to the hearing. The applicant shall pay
40
a
all costs for such notices as determined by the
Development Services Department.
Sec. 13-861.4 Suspension and Revocation of Conditional Use
Permit.
The Planning Commission may suspend or revoke any conditional
use permit if it is found that any of the following conditions
exist in addition to the criteria set forth in this article.
(a) The operation conducted by the permittee does not comply
with all applicable laws, including but not limited to,
the City's building, health, zoning and fire ordinances
and this article;
(b) The approved use has been substantially enlarged without
City approval; the approved use has been partially or
wholly converted to another adult business without City
approval; the conditional use permit has not been
utilized within six months of its issuance; or
(c) The adult business license has been suspended or revoked.
(d) The operation conducted by the permittee constitutes a
public nuisance.
Sec. 13-862. Violations/Penalties.
Any firm, corporation or person, whether as principal, agent,
employee or otherwise, violating or causing the violation of
any of the provision of this article shall be guilty of a
misdemeanor, and any conviction thereof shall be punishable by
a fine of not more than one thousand dollars ($1,000.00) or by
imprisonment for not more than six (6) months, or by both such
fine and imprisonment. Any violation of the provisions of
this article shall constitute a separate offense for each and
every day during which such violation is committed or
continued.
Sec. 13-863. Public Nuisance.
In addition .to the penalties set forth above, any adult
business which is operating in violation of this article or
any provision thereof is hereby declared to constitute a
public nuisance and, as such, may be abated or enjoined from
further operation.
Sec. 13-864. Other Regulations.
(a) The regulations in this article shall apply in all
districts in addition to the regulations specified
elsewhere in this Title. Provided, however, that if any
41
of the regulations specified in this article differ from
any of the corresponding regulations specified elsewhere
in this Title for any district, then in such case the
provisions of this article shall govern.
(b) Any adult business lawfully operating on February 22,
1994, that is in violation of this article, shall be
deemed a nonconforming use. A nonconforming adult
business will be permitted to continue for a period of
one year, with a possible one year extension, for a total
time period not to exceed two years, unless sooner
terminated for any reason or voluntarily discontinued for
a period of thirty (30) days or more. An application for
a one year extension for extenuating circumstances may be
granted by the Planning Commission only upon a convincing
showing of extreme financial hardship by the adult
business. Such nonconforming adult business shall not be
increased, enlarged, extended or altered except that the
use may be changed to a conforming use. If two (2) or
more adult businesses are within one thousand (1,000)
feet of one another and otherwise in a permissible
location, the adult business which was first established
and has continually operated at the particular location
is the conforming use and the later established
business(es) is nonconforming.
(c) Any adult business lawfully operating as a conforming use
is not rendered a nonconforming use by the location,
subsequent to the grant or renewal of an adult business
permit and/or license, of a school, public park,
religious institution, or public building likely to be
frequented by minors within one thousand (1,000) feet
and/or residential use within five hundred (500) feet of
the.adult business. This provision applies only to the
renewal of a valid permit and/or license and does not
apply when an application for a permit and/or license is
submitted after a permit and/or license has expired or
has been revoked.
Section 5. Section 13-185 of the Costa Mesa Municipal Code is
hereby amended as follows:
Sec. 13-185. Permitted Uses.
1. Public administrative, professional and business offices,
including massage establishments meeting the criteria set
forth in Article 22 of Chapter II of Title 9 of this
Code.
Section 6. Sub -section 2 of Section 13-197 of the Costa Mesa
Municipal Code is hereby amended as follows:
42
M
Sec. 13-197. Permitted Uses.
2. All permitted uses in the Administrative and Professional
(AP) District.
Section 7. Subsection 4 of Section 13-208 of the Costa Mesa
Municipal Code is hereby amended as follows:
4. All permitted uses in the Administrative and Professional
(AP) District.
Section S. Subsections (3) and (8) of Section 13-552 of the
Costa Mesa Municipal Code are hereby amended as follows:
(3) Medical and dental
offices and massage
establishments
6 spaces per 1000 sq. ft. of
gross floor area with
minimum of 6 spaces
(8) Health clubs, spas, 10 spaces per 1000 sq. ft.
figure salons, skating of gross floor area
rinks, massage—p,rlerb,
game arcades
Section 9. Conflicting Ordinances Repealed.
All ordinances or parts of ordinances, or regulations in conflict
with the provisions of this ordinance are hereby repealed.
Section 10. Severability.
If any provision or clause of this ordinance or the application
thereof to any person or circumstance is held to be
unconstitutional or otherwise invalid by any court of competent
jurisdiction,such invalidity shall not affect other provisions or
clauses or applications of this ordinance which can be implemented
without the invalid provision, clause or application; and to this
end, the provisions of this ordinance are declared to be severable.
Section 11. This ordinance shall take effect and be in full
force thirty (30) days from and after the passage thereof, and
prior to the expiration of fifteen (15) days from its passage shall
be published once in the ORANGE COAST DAILY PILOT, a newspaper of
general circulation, printed and published in the City of Costa
Mesa or, in the alternative, the City Clerk may cause to be
published a summary of this Ordinance and a certified copy of the
text of this Ordinance shall be posted in the office of the City
Clerk five (5) days prior to the date of adoption of this
Ordinance, and within fifteen (15 ) days after adoption, the City
Clerk shall cause to be published the aforementioned summary and
shall post in the office of the City Clerk a certified copy of this
Ordinance together with the names of the members of the City
Council voting for and against the same.
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PASSED AND ADOPTED this day of Q tom., 1994.
ATTEST:
A;
Mayor If
the City of Costa Mesa
APPROVED AS TO FORM:
Deputy Ci4ta
Clerk of the City Attorney
City of C Mesa
44
A
Nir
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio clerk of
the City Council of the City of Costa Mesa, hereby certify that the
above and foregoing Ordinance No. 14 - 17 was introduced and
considered section by section at a regular meeting of said City
Council held on the c2 day of A/c'&/. , 1994, and thereafter passed
and adopted as _ whole at a regular meeting of said City Council
held on the day of 01, , 1994, by the following roll call
vote:
AYES: COUNCIL MEMBERS: E R; 011,�5aA N Fr` -R J46Q vauc,?LE GENT 5
NOES: COUNCIL MEMBERS: 001Jr-
ABSENT: COUNCIL MEMBERS: tjp � 1
IN WITNESS WHEREOF, I have hereunto spt my hand and affixed the
Seal of the City of Costa Mesa this � day of -DEC., 1994.
PLV6(ADULT.0RD)10/17/94
Deputy ty Clerk .and ex -officio
Clerk the City Council of the
City of Costa Mesa
45
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