HomeMy WebLinkAbout98-04 Special Land Use Regulations, Licensing and Regulation of Adult BusinessesORDINANCE NO. Q9-4
AN URGENCY ORDINANCE OF THE CITY COUNCIL OF
THE CITY OF COSTA MESA AMENDING TABLE 13-30 OF
SECTION 13-30 OF CHAPTER IV OF TITLE 13 OF THE
COSTA MESA MUNICIPAL CODE; REPEALING SECTION
13-135 OF ARTICLE 1 OF CHAPTER IX OF TITLE 13;
AMENDING ARTICLE 1 OF CHAPTER IX OF TITLE 13
REGARDING SPECIAL LAND USE REGULATIONS, ADULT
BUSINESSES; AMENDING CHAPTER IV OF TITLE 9,
PROVIDING FOR LICENSING AND REGULATION OF
ADULT BUSINESSES; AND REPEALING SECTIONS
INCONSISTENT THEREWITH AND DECLARING THE
URGENCY THEREOF
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 objective 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 recognized that sexually -oriented businesses, due to their nature, will
effect significant changes in vehicular traffic, noise, pedestrian safety, air quality, parking,
neighborhood character, and will create a demand on public safety and emergency
services; and will have an adverse impact upon real estate values in the City of Costa
Mesa.
C. 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:
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(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 in
other cities:
Austin, Texas:
1986
Indianapolis, Indiana:
1984
Renton, Washington
1984
San Diego, California
1987
Los Angeles, California:
1977
Phoenix, Arizona:
1979
St. Paul, Minnesota:
1989
Garden Grove, California:
1991
Upland, California:
1992
Tucson, Arizona
1990
Seattle, Washington
1989
Oklahoma City, Oklahoma
1986
Houston, Texas
1983
Beaumont, Texas
1982
Minneapolis, Minnesota
1980
Whittier, California
1978
Cleveland, Ohio
1977
(2) The City Council finds that these studies are relevant to the problems
addressed by the City in enacting this Ordinance to regulate the
adverse secondary effects of sexually -oriented businesses, and more
specifically finds that these studies provide convincing evidence 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 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,
educational, 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
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increases in the crime rates and blighting of those areas in which they
are located and that surround them.
(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 with
sensitive uses such as residential zones and uses, parks, schools,
churches, or day care centers, thereby having a deleterious effect
upon the adjacent areas.
(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 and other sexually -oriented businesses into
consideration and has endeavored to minimize the negative
secondary effects 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 and other sexually -oriented businesses is documented
in studies conducted by other jurisdictions as listed hereinabove.
(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
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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,
(b) The impacts of sexually -oriented businesses are exacerbated
when they are located near one another. 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 adult-oriented businesses in order to
mitigate the compounded concentrations as described above.
(11) Zoning, licensing and other police power regulations are legitimate
reasonable means of accountability to ensure that the operators of
sexually -oriented businesses comply with reasonable regulations and
are located in places which minimize the adverse secondary affects
that which naturally accompany the operation.
(12) The City of Costa Mesa has a legitimate health concern about
sexually transmitted diseases, including AIDS, which demands
reasonable regulations of sexually -oriented businesses in order to
protect the health and well-being of its citizens.
(13) In developing this Ordinance, the City Council has been mindful of
legal principles relating to regulation of sexually -oriented businesses
and does not intend to suppress or infringe upon any expressive
activities protected by the First Amendments of the United States and
California Constitutions, but instead desires to enact reasonable, time,
place, and manner regulations that address the adverse secondary
effects of sexually -oriented businesses. The City Council has been
mindful of the decisions of the United States Supreme Court
regarding local regulation of sexually -oriented businesses, including
but not limited to: Young v. American Mini -Theatres, Inc., 427 U.S.
50 (1976) (Reh. denied 429 U.S. 873); Renton v. Playtime Theatres,
475 U.S. 41 (1986) (Reh. denied 475 U.S. 1132); FW/PBS, Inc. v.
Dallas, 493 U.S. 215 (1990); Barnes v. Glen Theatre, Inc., 501 U.S.
560 (1991); United States Court of Appeals 9th Circuit decisions,
including but not limited to: Topanga Press, et al. v. City of Los
Angeles, 989 F.2d 1524 (1993); and several California cases
including, but not limited to: City of National City v. Wiener, 3 Cal.4th
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832 (1993); People v. Superior Court (Lucero) 49 Cal.3d 14 (1989);
and City of Vallejo v. Adult Books, et al., 167 Cal.App.3d 1169 (1985);
and other federal cases including Lakeland Lounge v. City of
Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On, Inc. v. Arlington
(5th Cir. 1995) 65 F.3d 1248, Mitchell v. Commission on Adult
Entertainment (3d Cir. 1993) 10 F.3d 123.
(14) The City Council of the City of Costa Mesa also finds that locational
criteria alone do not adequately protect the health, safety, and general
welfare of the citizens of the City of Costa Mesa, and thus certain
requirements with respect to the ownership and operation of sexually -
oriented businesses are in the public interest. In addition to the
findings and studies conducted in other cities regarding increases in
crime rates, decreases in property values and the blighting of areas
in which such businesses are located, the City Council also takes
legislative notice of the facts recited in the case of Kev, Inc. v. Kitsap
County, 793 F.2d 1053 (1986), regarding how live adult entertainment
results in negative secondary effects such as prostitution, drug
dealing, and other law enforcement problems.
(15) The City Council finds the following:
(a) Evidence indicates that some dancers, models and
entertainers, and other persons who publicly perform specified
sexual activities or publicly display specified anatomical parts
in sexually -oriented businesses (collectively referred to as
"performers") have been found to engage in sexual activities
with patrons of sexually -oriented businesses on the site of the
sexually -oriented business;
(b) Evidence has demonstrated that performers employed by
sexually -oriented businesses have been found to offer and
provide private shows to patrons who, for a price, are permitted
to observe and participate with the performers in live sex
shows;
(c) Evidence indicates that performers at sexually -oriented
businesses have been found to engage in acts of prostitution
with patrons of the establishment;
(d) Evidence indicates that fully enclosed booths, individual
viewing areas, and other small rooms whose interiors cannot
be seen from public areas of the establishment regularly have
been found to be used as a location for engaging in unlawful
sexual activity;
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(e) As a result of the above, and the increase in incidents of AIDS
and Hepatitis B, which are both sexually transmitted diseases,
the City has a substantial interest in adopting regulations which
will reduce, to the greatest extent possible, the possibility for
the occurrence of prostitution and casual sex acts at sexually -
oriented businesses.
(16) Nothing in this Ordinance is intended to authorize, legalize, or permit
the establishment, operation, or maintenance of any business,
building, or use which violates any City ordinance or any statute of the
State of California regarding public nuisances, unlawful or indecent
exposure, sexual conduct, lewdness, obscene or harmful matter or
the exhibition or public display thereof.
(17) In prohibiting public nudity in sexually -oriented businesses, the City
Council does not intend to proscribe the communication of erotic
messages or any other communicative element or activity, but rather
only to prohibit public nudity due to the negative secondary impacts
associated with such public nudity.
(18) The City Council also finds, as a wholly independent basis, that it has
a substantial public interest in preserving societal order and morality,
and that such interest is furthered by a prohibition on public nudity.
(19) While the City Council desires to protect the rights conferred by the
United States Constitution to sexually -oriented businesses, it does so
in a manner that ensures the continued and orderly development of
property within the City and diminishes, to the greatest extent feasible,
those undesirable negative secondary effects which the
aforementioned studies have shown to be associated with the
development and operation of sexually -oriented businesses.
(20) In enacting a nudity limitation, the City declares that the limitation is
a regulatory licensing provision and not a criminal offense. The City
has not provided a criminal penalty for a violation of the nudity
limitation. The City adopts such a limitation only as a condition of
issuance and maintenance of a sexually -oriented business license
issued pursuant to the City of Costa Mesa Municipal Code.
(21) The City Council finds that preventing the exchange of money
between entertainers and patrons also reduces the likelihood of drug
and sex transactions occurring in sexually -oriented businesses.
(22) Requiring separations between entertainers and patrons reduces the
likelihood that such persons will negotiate narcotics sales and/or
transact sexual favors within the sexually -oriented business.
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(23) Enclosed or concealed booths and dimly-lit areas within sexually -
oriented businesses greatly increase the potential for misuse of the
premises, including unlawful conduct of a type which facilitates
transmission of disease. Requirements that all indoor areas be open
to view by management at all times, and that adequate lighting be
provided are necessary in order to reduce the opportunity for, and
therefore the incidence of illegal conduct within sexually -oriented
businesses, and to facilitate the inspection of the interior of the
premises thereof by law enforcement personnel.
(24) The City Council of Costa Mesa consistent with sale and consumption
of alcohol and outside advertising limitations further finds that
additional regulations, including restricted hours of operation will
further prevent the adverse secondary effects of sexually -oriented
businesses.
(25) Sexually -oriented businesses lend themselves to ancillary unlawful
and unhealthy activities that are presently uncontrolled by the
operators of the establishments. Further, there is presently no
mechanism to make the owners of these establishments responsible
for the activities that occur on their premises.
(26) Certain employees of sexually -oriented businesses defined in this
Ordinance as adult theaters and cabarets engage in higher incidence
of certain types of illicit sexual behavior than employees of other
establishments.
(27) Sanitary conditions in some sexually -oriented businesses are
unhealthy, in part, because the activities conducted there are
unhealthy, in part, because of the unregulated nature of the activities
and the failure of the owners and the operators of the facilities to self -
regulate those activities and maintain those facilities.
(28) Numerous studies and reports have determined that semen is found
in the areas of sexually -oriented businesses where persons view
"adult' oriented films.
(29) A reasonable licensing procedure is an appropriate mechanism to
place the burden of that reasonable regulation on the owners and the
operators of the sexually -oriented businesses. Further, such a
licensing procedure will place a heretofore nonexistent incentive on
the operators to see that the sexually oriented business is run in a
manner consistent with the health, safety, and welfare of its patrons
and employees, as well as the citizens of the City. It is appropriate to
require reasonable assurances that the licensee is the actual operator
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of the sexually -oriented business, fully in possession and control of
the premises and activities occurring therein.
(30) Requiring licensees of sexually -oriented businesses to keep
information regarding current employees and certain past employees
will help reduce the incidence of certain types of criminal behavior by
facilitating the identification of potential witnesses or suspects and by
preventing minors from working in such establishments.
(31) The disclosure of certain information by those persons ultimately
responsible for the day-to-day operation and maintenance of the
sexually -oriented business, where such information is substantially
related to the significant governmental interest in the operation of
such uses, will aid in preventing the spread of sexually transmitted
diseases.
(32) It is desirable in the prevention of the spread of communicable
diseases to obtain a limited amount of information regarding certain
employees who may engage in the conduct which this Ordinance is
designed to prevent or who are likely to be witnesses to such activity.
(33) The fact that an applicant for a sexually -oriented business license has
been convicted of a sexually related crime leads to the rational
assumption that the applicant may engage in that conduct in
contravention of this Ordinance.
(34) The findings noted in paragraphs number 1 through 33 raise
substantial governmental concerns.
(35) Sexually -oriented businesses have operational characteristics which
should be reasonably regulated in order to protect those substantial
governmental concerns.
(36) It is not the intent of this Ordinance to suppress any speech activities
protected by the First Amendment, but to enact a content neutral,
time, place and manner ordinance which addresses the adverse
secondary effects of sexually -oriented businesses.
SECTION 2.
Table 13-30 of Section 13-30 of Chapter IV of Title 13 of the Costa Mesa Municipal
Code as it relates to Massage Establishments and Practitioners and Sexually -Oriented
Businesses is hereby amended to read as follows:
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I N
I
TABLE 13-30 (Cont.)
CITY OF COSTA MESA LAND USE MATRIX
ZONES
P
P
P
P
D
R
R
D
D
D
R
I
2
2
C
R
R
R
N
P
P
I
&
R
M
H
R
A
C
C
C
1
T
M
M
L
M
H
C
D
D
&
R
LAND USES
1
D
D
3
P
L
1
2
S'
C'
G
P
D'
D'
D'
M'
C'
1'
R'
S'
P
Acupressure;
•
•
•
•
P2
P2
P2
P2
P2
P2
•
•
•
•
•
•
P2
•
•
•
•
Massage
(subject to the
requirements
of TITLE 9,
CHAPTER[],
ARTICLE 22,
MASSAGE
ESTABLISH-
MENTS AND
PRACTITION-
ERS)
Sexually-
•
•
•
•
•
P2
P2
P2
P2
•
•
•
•
•
•
•
P2
•
•
•
•
Oriented
Businesses
(subject to the
requirements
of TITLE 9,
CHAPTER IV,
AND TITLE 13,
CHAPTER IX,
SEXUALLY -
ORIENTED
BUSINESSES)
SECTION 3.
Section 13-135. Development and operational standards, of Article 1 of Chapter IX
of Title 13 of the Costa Mesa Municipal Code is hereby repealed.
SECTION 4.
Article 1 of Chapter IX of Title 13 of the Costa Mesa Municipal Code is hereby
amended to read as follows:
ARTICLE 1. SEXUALLY -ORIENTED BUSINESSES
Sec. 13-129. Purpose and Intent.
The purpose and intent of this Article are to regulate sexually -oriented businesses
which, unless closely regulated, tend to have serious negative secondary effects on the
community, which effects include, but are not limited to, the following: depreciation of
property values and increase in vacancies in residential and commercial areas in the
vicinity of sexually -oriented businesses; interference with residential property owners'
enjoyment of their property when such property is located in the vicinity of sexually -oriented
businesses as a result of increases in crime, litter, noise and vandalism; higher crime rates
in the vicinity of sexually -oriented businesses; and blighting conditions such as low-level
maintenance of commercial premises and parking lots, which thereby have a deleterious
effect upon adjacent areas. Special regulation of these businesses is necessary to prevent
these adverse effects and the blighting or degradation of the neighborhoods in the vicinity
of the sexually -oriented businesses.
It is neither the intent nor the effect of this Article to impose limitations or restrictions
on the content of any communicative material. Similarly, it is neither the intent nor the
effect of this Article to restrict or deny access by adults to communication materials or to
deny access by the distributors or exhibitors of sexually -oriented businesses to their
intended market.
Nothing in this Article is intended to authorize, legalize or permit the establishment,
operation or maintenance of any business, building or use which violates any City
ordinance or any statute of the State of California regarding public nuisances, unlawful or
indecent exposure, sexual conduct, lewdness or obscene or harmful matter or the
exhibition or public display thereof.
Notwithstanding any other provision of Title 13 of the "City of Costa Mesa Planning,
Zoning and Development Code," the regulations set forth under this Article shall apply
specifically to sexually -oriented businesses. To the extent there are any inconsistencies
between the provisions of Sections 13-1 through 13-128 and the provisions of this Article
1, the provisions of this Article shall govern.
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Sec. 13-130. 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.
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;"
Adult Bookstore/Novelty Store. An establishment which on a regular and
substantial basis sells or rents, or offers for sale or rental, for any form of
consideration, of any one or more of the following:
(a) Books, magazines, periodicals or other printed matter, or
photographs, films, sculptures, 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;"
(b) Instruments, devices or paraphernalia which are designed for use in
connection with "specified sexual activities."
Adult Cabaret. A nightclub, restaurant or similar establishment which, for any form
of consideration, and on a regular 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."
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."
Adult Hotel or Motel. A hotel or motel or similar business establishment offering
public accommodations for any form of consideration which on a regular and
substantial basis (1) provides patrons with closed-circuit television transmissions,
films, motion pictures, video cassettes, slides or other photographic reproductions
which are characterized by an emphasis on material depicting, describing or relating
to "specified sexual activities" and/or "specified anatomical areas;" and/or (2). rents,
leases, or lets any room for less than a six (6) hour period, or rents, leases or lets
any single room more than twice in a twenty-four (24) hour period.
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Adult Motion Picture Theater. An establishment where, 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 (5) 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;"
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 which are characterized by an emphasis on "specified anatomical
areas" and/or "specified sexual activities;"
Employee. A person who works or performs in a sexually -oriented business
regardless of whether or not the person is paid a salary, wage or other
compensation by the business.
Establishment, Establishment of a sexually -oriented business Includes any of the
following:
(a) The opening or commencement of any such business as a new
business;
(b) The conversion of an existing business, whether or not a sexually -
oriented business, to any of the sexually -oriented businesses defined
herein;
(c) The addition of any of the sexually -oriented businesses defined herein
to any other existing sexually -oriented business; or
(d) The relocation of any such sexually -oriented business.
Figure Model. Any person who, for pecuniary compensation, consideration, hire,
or reward, poses in a modeling studio to be observed, sketched, painted, drawn,
sculptured, photographed or otherwise depicted.
Modeling Studio. A business which provides, for pecuniary compensation,
monetary or other consideration, hire or reward, figure models who, for the
purposes of sexual stimulation of patrons, display "specified anatomical areas" to
be observed, sketched, photographed, painted, sculpted or otherwise depicted by
persons paying such consideration. "Modeling studio" does not include schools
maintained pursuant to standards set by the State Board of Education. "Modeling
studio' further does not include a studio or similar facility owned, operated, or
maintained by an individual artist or group of artists, and which does not provide,
permit or make available "specified sexual activities."
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588290290_1 1
Nudity or a State of Nudity. The showing of the human male or female genitals,
pubic area, or buttocks with less than a fully opaque covering, the showing of the
female breast with less than a fully opaque covering of any part of the nipple, or the
showing of the covered genitals in a discernible turgid state.
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.
Operate a Sexually -Oriented Business. As used in this article, "operate a
sexually -oriented business" means the supervising, managing, inspecting, directing,
organizing, controlling or in any way being responsible for or in charge of the
conduct of activities of a sexually -oriented business or activities within a sexually -
oriented business.
Person. Any individual, firm, association, partnership, corporation, joint venture,
trust or combination of individuals or persons.
Public Park. A park, playground, swimming pool, beach, pier, athletic field, or
similar recreational facility within the city which is under the control, operation or
management of the city.
Regular and Substantial Basis. An activity or performance shall be deemed to be
on a regular or substantial basis when it constitutes more than twenty-five percent
(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.
Religious Institution. A structure which is used primarily for religious worship and
related religious activities within the City.
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.
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, junior high school, senior high school or any special institution
of Education within the City, but it does not include vocational or professional
institution of higher education, including a community or junior college, college or
university.
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588290290_1 1
Semi Nude. A state of dress in which clothing covers no more than the genitals,
pubic region, buttocks, areola of the female breast, as well as portions of the body
covered by supporting straps or devices. Semi-nude shall also include a person
with partial clothing to include lingerie or similar clothing where "specified anatomical
areas" are exposed.
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 (2) 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.
Sexually -Oriented 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." Sexually -oriented 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,
modeling 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."
Specified Anatomical Areas. Includes any of the following:
(a) 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
(b) Human male genitals in a discernibly turgid state, even if completely and
opaquely covered; or
(c) Any device, costume or covering that simulates any of the body parts
included in subsection (a) or (b) above.
Specified Sexual Activities. Includes any of the following:
(a) The fondling or other erotic touching of human genitals, pubic region,
buttocks, anus or female breasts;
(b) 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 -
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oriented acts or conduct: anilingus, cunnilingus, fellatio, necrophilia,
pederasty, pedophilia, piquerism, sapphism, zooerasty;
(c) Masturbation of human or animal, actual or simulated;
(d) Clearly depicted specified anatomical areas in a state of sexual arousal,
stimulation or tumescence;
(e) Human or animal masturbation, sodomy, oral copulation, coitus, ejaculation;
and
(d) Excretory functions, urination, menstruation, vaginal or anal irrigation as part
of or in connection with any of the activities described in subdivisions (a)
through (e) of this subsection.
Substantial Enlargement. An increase, over the lifetime of the business, of more
than ten percent (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 anatomical areas" and/or "specified sexual activities."
Transfer of Ownership or Control of a Sexually -Oriented Business. 'Transfer
of Ownership or Control of a Sexually -Oriented Business" shall mean and include
any of the following;
(a) The sale, lease or sublease of the business; or
(b) The transfer of securities which constitute a controlling interest in the
business, whether by sale, exchange or similar means; or
(c) The establishment of a trust, gift or other similar legal device which transfers
ownership or control of the business, including the transfer by bequest or
other operation of law upon the death of a person possessing the ownership
or control.
Sec. 13-131. Exceptions to the Article.
This article shall not apply to any of the following businesses or activities:
(a) Any massage establishment or massage practitioner holding a valid current
license issued pursuant to the provisions of Title 9 of this Municipal 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 Municipal Code.
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(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 to practice any such art or profession under the
provisions of the State Business and Professions Code or any other state
law.
Sec. 13-132. Establishment of Sexually -Oriented Business.
The establishment of a sexually -oriented business shall be permitted only in the CL,
C1, C2, CI -S or PDC Zones and shall be subject to the following regulations.
(a) A sexually -oriented business shall be subject to the following restrictions:
(1) Not within five hundred (500) feet of any area zoned for and/or
lawfully operated as a residential use;
(2) With the exception of the PDC Zone, not within one thousand (1,000)
feet of any other sexually -oriented business;
(3) Not within one thousand (1,000) feet of any school, public park, or
religious institution;
(4) Not within any redevelopment area or the Newport Boulevard Specific
Plan area.
(b) Each such sexually -oriented business must, prior to commencement or
continuation or substantial enlargement of such business, first apply for and
receive a sexually -oriented business license in accordance with the
provisions in Chapter IV, Article 9 of the City of Costa Mesa Municipal Code.
(c) Each person who engages in or participates in any live performance
involving, depicting, describing or relating to specified anatomical areas or
specified sexual activities in a sexually -oriented business shall first apply for
and receive a sexually -oriented business performer license.
Sec. 13-133. Measurement of Distance.
With the exception of sexually -oriented businesses located within the PDC Zone,
the distance between any two (2) sexually -oriented 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 sexually -
oriented business and any residential use, religious institution, school, or public park 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
sexually -oriented business is conducted, to the nearest property line of a residential use,
religious institution, school, or public park.
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Sec. 13-134. Misdemeanor Offenses.
In addition to all other offenses specified in this article, municipal code, county
ordinances and state statutes, a sexually -oriented business shall be subject to the following
restrictions:
(a) Notwithstanding that it is not a criminal offense for a person to operate or
cause to be operated a sexually -oriented business to be in violation of
Chapter IV, Article 9, nudity limitation, it shall be unlawful and a
misdemeanor to establish, substantially enlarge or operate a sexually -
oriented business within the city without first complying with the provisions
of this article;
(b) It shall be unlawful and a misdemeanor to operate or cause to be operated
a sexually -oriented 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
a sexually -oriented business within one thousand (1,000) feet of any
religious institution, school, or public park or within five hundred (500) feet of
any area zoned for and/or lawfully operated as a residential use.
(d) With the exception of sexually -oriented businesses located within the PDC
zone, it shall be unlawful and a misdemeanor to operate or cause to be
operated a sexually -oriented business within one thousand (1,000) feet of
another sexually -oriented business.
(e)' With the exception of sexually -oriented businesses located within the PDC
zone, it shall be unlawful and a misdemeanor to cause or permit the
operation, establishment or maintenance of more than one sexually -oriented
business within the same building, structure or portion thereof, or to cause
the increase of floor area of any sexually -oriented business in any building,
structure or portion thereof containing another sexually -oriented business.
(f) For those sexually -oriented businesses located within the PDC Zone, it shall
be unlawful and a misdemeanor to cause or permit the operation,
establishment or maintenance of more than one sexually -oriented business
within the same leasing or occupied space or portion thereof containing
another sexually -oriented business.
Sec. 13-135. Violations/Penalties.
With the exception of any violation of the nudity limitation under Chapter IV, Title 9„
any firm, corporation or person, whether as principal, agent, employee or otherwise,
violating or causing the violation of any of the provisions of this article shall be guilty of a
misdemeanor, and any conviction thereof shall be punishable by a fine of not more than
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one thousand dollars ($1,000.00) or by imprisonment for not more than six (6) months, or
by both such fine and imprisonment. Notwithstanding any violation of the nudity limitation
under Chapter IV, Title 9, 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. 13-136. Public Nuisance.
In addition to the penalties set forth above, any sexually -oriented business which
is operating in violation of this article or any provision thereof or Chapter IV of Title 9, or
any provision thereof, is hereby declared to constitute a public nuisance and, as such, may
be abated or enjoined from further operation.
Sec. 13-137. Other Regulations.
(a) Any sexually -oriented business lawfully operating on February 22, 1994, that
is in violation of this article, shall be deemed a nonconforming use. A
nonconforming sexually -oriented business will be permitted to continue for
a period of one (1) year, with a possible one (1) year extension, for a total
time period not to exceed (2) years, unless sooner terminated for any reason
or voluntarily discontinued for a period of thirty (30) days or more. An
application for a one (1) year extension for extenuating circumstances may
be granted by the Planning Commission only upon a convincing showing of
extreme financial hardship by the sexually -oriented business. Such
nonconforming sexually -oriented 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 sexually -oriented businesses are within one thousand
(1,000) feet of one another and otherwise in a permissible location, the
sexually -oriented 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.
(b) Any sexually -oriented business lawfully operating as a conforming use is not
rendered a nonconforming use by the location, subsequent to the grant or
renewal of a sexually -oriented 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 sexually -oriented 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.
Sec. 13-138. Reserved.
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SECTION 5.
Chapter IV of Title 9 of the Costa Mesa Municipal Code is hereby amended to read
as follows:
CHAPTER IV. SEXUALLY -ORIENTED BUSINESS REGULATIONS
Sec. 9-447. Legislative Purpose.
It is the purpose of this Ordinance to regulate sexually -oriented businesses in order
to promote the health, safety, morals, and general welfare of the citizens of the City. 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. Similarly, it is not the intent nor effect of this Ordinance to restrict or deny
access by adults to sexually -oriented materials protected by the First Amendment, or to
deny access by the distributors and exhibitors of sexually -oriented entertainment to their
intended market. Neither is it the intent nor effect of this Ordinance to condone or
legitimize the distribution of obscene material.
Sec. 9-448. Definitions.
For the purpose of this chapter the following words and phrases shall have the
meanings respectively ascribed to them by this section:
(a) Sexually -Oriented 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." "Sexually -oriented 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, modeling studio, and any other business or
establishment as those terms are defined in Section 13-130 of Title 13 of the
City of Costa Mesa Municipal 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 13-130 of Title 13.
(b) Establishment. 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 a sexually -
oriented business, to any of the sexually -oriented businesses defined
herein;
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(3) The addition of any of the sexually -oriented businesses defined herein
to any other existing sexually -oriented business; or
(4) The relocation of any such sexually -oriented business.
(c) Figure Model. Any person who, for pecuniary compensation, consideration,
hire or reward, poses in a modeling studio to be observed, sketched, painted,
drawn, sculptured, photographed, or otherwise similarly depicted.
(d) Nudity or a State of Nudity. The showing of the human male or female
genitals, pubic area, or buttocks with less than a fully opaque covering, the
showing of the female breast with less than a fully opaque covering of any
part of the nipple, or the showing of the covered genitals in a discernible
turgid state.
(e) Semi Nude. A state of dress in which clothing covers no more than the
genitals, pubic region, buttocks, areola of the female breast, as well as
portions of the body covered by supporting straps or devices. Semi-nude
shall also include a person with partial clothing to include lingerie or similar
clothing where "specified anatomical areas' are exposed.
(f) Person. Any individual, firm, association, partnership, corporation, joint
venture, trust or combination of individuals or persons.
(g) Substantial Enlargement. An increase, over the lifetime of the business,
of more than ten percent (10%) or one hundred 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 anatomical areas" and/or "specified sexual
activities."
(h) Transfer of Ownership or Control of a Sexually -Oriented Business.
Include any of the following;
(1) The sale, lease or sublease of the business; or
(2) The transfer of securities which constitute a controlling interest in the
business, whether by sale, exchange or similar means; or
(3) The establishment of a trust, gift or other similar legal device which
transfers ownership or control of the business, including the transfer
by bequest or other operation of law upon the death of a person
possessing the ownership or control.
(i) Modeling Studio. The term "modeling studio" as used in this chapter,
means a business which provides, for pecuniary compensation, monetary or
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other consideration, hire or reward, figure models who, for the purposes of
sexual stimulation of patrons, display "specified anatomical areas" to be
observed, sketched, photographed, painted, sculpted or otherwise depicted
by persons paying such consideration. "Modeling studio" does not include
schools maintained pursuant to standards set by the State Board of
Education. "Modeling studio" further does not include a studio or similar
facility owned, operated, or maintained by an individual artist or group of
artists, and which does not provide, permit, or make available "specified
sexual activities."
(j) Sexually -Oriented Business Operator. "Sexually -Oriented Business
Operator" (hereinafter "operator") means a person who supervises,
manages, inspects, directs, organizes, controls or in any other way is
responsible for or in charge of the premises of a sexually -oriented business
or the conduct or activities occurring on the premises thereof.
(k) Applicant. A person who is required to file an application for a license under
this chapter, including an individual owner, managing partner, officer of a
corporation, or any other operator, manager, employee, or agent of a
sexually -oriented business or a performer of a sexually -oriented business.
(1) Licensee. The person to whom a sexually -oriented business license or
sexually -oriented business performer's license is issued.
(m) Police Chief. The Police Chief of the City of Costa Mesa or the authorized
representatives thereof.
Sec. 9-449. 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 Chapter II, Article 22 of this Title.
Sec. 9-450. Zoning Requirements.
In addition to the requirements of this chapter, all sexually -oriented businesses
subject to this chapter shall comply to the requirements set forth in Article 1, Chapter IX,
of Title 13 of the City of Costa Mesa Municipal Code.
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Sec. 9-451. 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 sexually -oriented
business without a valid license issued for the specific activity pursuant to the
provisions of this chapter for each and every such regulated sexually -
oriented business.
(b) It shall be unlawful for any persons to engage in or participate in any live
performance depicting, describing or relating to specified anatomical areas
and/or involving specified sexual activities in a sexually -oriented business
unless the person first obtains and continues in force and effect a sexually -
oriented business performer's license from the City of Costa Mesa as herein
required.
Sec. 9-452. License Required for Each Location; Display of License.
A separate sexually -oriented business license is required for each location within
the boundaries of the City of Costa Mesa at which a regulated sexually -oriented business
is to be established. The requirements of this chapter for a sexually -oriented 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 sexually -oriented
business shall display its sexually -oriented 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. 9-453. Transfer of Ownership or Control.
Upon the transfer of ownership or control of a sexually -oriented business, the
sexually -oriented business license shall immediately be null and void. In order for the
sexually -oriented business to continue operating, a new application and license is required.
Sec. 9-454. Change of Location or Name.
(a) Upon the change of location of the premises where a sexually -oriented
business is conducted, the sexually -oriented business license shall
immediately be null and void. In order for the sexually -oriented business to
operate at the new location, a new application and license is required.
(b) No licensee shall operate a regulated sexually -oriented business under any
name or designation not specified in the license. Upon the change of name
of the sexually -oriented business, the sexually -oriented business license
shall immediately be null and void. In order for the sexually -oriented
business to continue operating, a new application and license is required.
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Sec. 9-455. Term of Sexually -Oriented Business License.
An approved sexually -oriented business license shall be valid for one (1) year, and
shall be renewed on an annual basis on the anniversary date of the original application.
Application for renewal of an unrevoked sexually -oriented business license shall be made
at least thirty (30) days prior to the expiration date of the current, valid license.
Sec. 9-456. Application for Sexually -Oriented Business License.
(a) An applicant requesting issuance or renewal of a sexually -oriented business
license shall file a written, signed and verified application or renewal
application in 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 the City of Costa Mesa Municipal Code.
(b) An application for a sexually -oriented business license shall contain the
following information:
(1) If the applicant is an individual, the individual shall state his or her
legal name, including any aliases, address, and submit satisfactory
written proof that he or she is at least eighteen (18) years of age.
(2) If the applicant is a partnership, the partners shall state the
partnership's complete name, address, the names of all partners,
whether the partnership is general or limited, and attach a copy of the
partnership agreement, if any.
(3) If the applicant is a corporation, the corporation shall provide its
complete name, the date of its incorporation, evidence that the
corporation is in good standing under the laws of California, the
names and capacity of all officers and directors, the name of the
registered corporate agent and the address of the registered office for
service of process.
(c) If the applicant is an individual, he or she shall sign the application. If the
applicant is other than an individual, an officer of the business entity or an
individual with a ten (10) percent or greater interest in the business entity
shall sign the application.
(d) If the applicant intends to operate the sexually -oriented business under a
name other than that of the applicant, the applicant shall file the fictitious
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name of the sexually -oriented business and show proof of registration of the
fictitious name.
(e) A description of the type of sexually -oriented business for which the license
is requested and the proposed address where the sexually -oriented business
will operate, plus the names and addresses of the owners and lessors of the
sexually -oriented business site.
(f) The address to which notice of action on the application is to be mailed.
(g) The names of all employees, independent contractors, and other persons
who will perform at the sexually -oriented business, who are required by
Section 9-459 to obtain a sexually -oriented business performer license.
(h) A sketch or diagram showing the interior configuration of the premises,
including a statement of the total floor area occupied by the sexually -oriented
business. The sketch or diagram need not be professionally prepared, but
must be drawn to a designated scale or drawn with marked dimensions of
the interior of the premises to an accuracy of plus or minus six (6) inches.
(i) A certificate and straight-line drawing prepared within thirty (30) days prior
to application depicting the building and the portion thereof to be occupied
by the sexually -oriented business, and: (1) the property line of any other
sexually -oriented business within one thousand (1,000) feet of the primary
entrance of the sexually -oriented business for which a license is requested,
with the exception of sexually -oriented businesses located within the PDC
Zone; and (2) the property lines of any religious institution, school, public
park, within one thousand (1,000) feet of the primary entrance of the
sexually -oriented business; and the property lines of any residential zone
within fie hundred (500) feet of the primary entrance of the sexually -oriented
business.
(j) A diagram of the off-street parking areas and premises entries of the
sexually -oriented business showing the location of the lighting system
required by Section 9-463(c).
(k) If the Police Chief determines that the applicant has completed the
application improperly, the Police Chief shall promptly notify the applicant of
such fact and, on request of the applicant, grant the applicant an extension
of time of ten (10) days or less to complete the application properly. In
addition, the applicant may request an extension, not to exceed ten (10)
days, of the time for the Police Chief to act on the application. The time
period for granting or denying a license shall be stayed during the period in
which the applicant is granted an extension of time.
8
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58290
(1) The fact that an applicant possesses other types of state or City permits or
licenses does not exempt the applicant from the requirement of obtaining a
sexually -oriented business license.
Sec. 9-457. Investigation and Action on Application.
(a) Upon receipt of a completed application and payment of the application and
license fees, the Police Chief shall immediately stamp the application as
received and promptly investigate the information contained in the
application to determine whether the applicant shall be issued a sexually -
oriented business license.
(b) Within thirty (30) days of receipt of the completed application, the Police
Chief shall complete the investigation, grant or deny the application in
accordance with the provisions of this Section, and so notify the applicant as
follows:
(1) The Police Chief shall write or stamp "Granted" or "Denied" on the
application and date and sign such notation.
(2) If the application is denied, the Police Chief shall attach to the
application a statement of the reasons for denial.
(3) If the application is granted, the Police Chief shall attach to the
application a sexually -oriented business license.
(4) The application as granted or denied and the license, if any, shall be
placed in the United States mail, first class postage prepaid,
addressed to the applicant at the address stated in the application.
(c) The Police Chief shall grant the application and issue the sexually -oriented
business license upon findings that the proposed business meets the
locational criteria of Section 13-132 of Title 13; and that the applicant has
met all of the development and performance standards and requirements of
Section 9-463 of this Chapter, unless the application is denied for one or
more of the reasons set forth in Section 9-458.
(d) If the Police Chief neither grants nor denies the application within thirty (30)
days after it is stamped as received (except as provided in Section 9-456(k),
the application shall be forwarded to the City Council at its next regularly
scheduled meeting for consideration in street conformance with the
provisions of this Section 9-457(c).
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Sec. 9-458. Denial of Application For Sexually -Oriented Business License.
The Police Chief, or, in the case of the Police Chief not acting within the time period
under Section 9-457(d), the City Council shall deny the application for any of the following
reasons:
(a) That the building, structure, equipment and location used by the business for
which a license is required herein do not comply with the requirements and
standards of the health, zoning, fire and safety laws of the State of California
and of the City of Costa Mesa.
(b) That the Applicant, his or her employee, agent, partner, director, officer,
stockholder or manager 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.
(c) That the Applicant has had any type of sexually -oriented business license
revoked by any public entity within two (2) years of the date of the
application.
(d) Within five (5) years immediately preceding the date of the filing of the
application for a license under this chapter, the Applicant has been convicted
of a felony or misdemeanor which offense is classified by the State as an
offense involving sexual crimes against children, sexual abuse, rape,
kidnapping, distribution of obscene material or material harmful to minors,
prostitution or pandering, including, but not necessarily limited to, the
violation of any crime requiring registration under California Penal Code
Section 290, or any violation of Penal Code Sections 243.4, 261, 261.5,
264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5, 288, 288a, 311
through 311.10, inclusive, 314, 315, 316, or 647.
(e) 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.
(f) That an Applicant is under eighteen (18) years of age.
(g) That an Applicant, manager, or any agent or employee of the Applicant or
manager has been convicted in a court of competent jurisdiction of any crime
in conjunction with or as a result of the operation of a sexually -oriented
business prior to the filing of the application. The fact that a conviction is
being appealed will have no effect on disqualification of the Applicant.
(h) The required application fees have not been paid.
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588290290_1 1
Sec. 9-459. Sexually -Oriented Business Performer Permit.
(a) No person shall engage in or participate in any live performance involving,
depicting, describing or relating to specified anatomical areas and/or
involving specified sexual activities in a sexually -oriented business, without
a valid sexually -oriented business performer license issued by the City. All
persons who have been issued a sexually -oriented business license shall
promptly supplement the information provided as part of the application for
the license required by Section 9-456, with the names of all performers
required to obtain a sexually -oriented business performer license, within
thirty (30) days of any change in the information originally submitted. Failure
to submit such changes shall be grounds for suspension of the sexually -
oriented business license.
(b) The Police Chief shall grant, deny and renew sexually -oriented business
performer licenses.
(c) The application for a license shall be made on a form provided by the Police
Chief. An original and two copies of the completed and sworn license
application shall be filed with the Police Chief.
(d) The completed application shall contain the following information and be
accompanied by the following documents:
(1) The applicant's legal name and any other names (including "stage
names" and aliases) used by the applicant;
(2) Age, date and place of birth;
(3) Height, weight, hair and eye color;
(4) Present residence address and telephone number;
(5) Whether the applicant has ever been convicted of:
(i) Any of the offenses set forth in Sections 315, 316, 266a, 266b,
266c, 266e, 266g, 266h, 266i, 647(a), 647(b) and 647(D) of
the California Penal Code as those sections now exist or may
hereafter be amended or renumbered.
(ii) The equivalent of the aforesaid offenses outside the State of
California.
(6) Whether such person is or has ever been licensed or registered as a
prostitute, or otherwise authorized by the laws of any other jurisdiction
to engage in prostitution in such other jurisdiction. If any person
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58290_1 -27- 2/2/98
mentioned in this subsection has ever been licensed or registered as
a prostitute, or otherwise authorized by the laws of any other state to
engage in prostitution, a statement shall be submitted giving the place
of such registration, licensing or legal authorization, and the inclusive
dates during which such person was so licensed, registered, or
authorized to engage in prostitution.
(7) State driver's license or identification number;
(8) Satisfactory written proof that the applicant is at least eighteen (18)
years of age;
(9) The applicant's fingerprints on a form provided by the Police
Department, and a color photograph clearly showing the applicant's
face. Any fees for the photographs and fingerprints shall be paid by
the applicant;
(10) If the application is made for the purpose of renewing a license, the
applicant shall attach a copy of the license to be renewed.
(e) The completed application shall be accompanied by a non-refundable
application fee. The amount of the fee shall be set by resolution of the City
Council.
(f) Upon receipt of an application and payment of the application fees, the
Police Chief shall immediately stamp the application as received and
promptly investigate the application.
(g) If the Police Chief determines that the applicant has completed the
application improperly, the Police Chief shall promptly notify the applicant of
such fact and grant the applicant an extension of time of not more than ten
(10) days to complete the application properly. In addition, the applicant may
request an extension, not to exceed ten (10) days, of the time for the City
Manger to act on the application. The time period for granting or denying a
license shall be stayed during the period in which the applicant is granted an
extension of time.
Sec. 9-460. Investigation and Action on Application.
(a) Within five (5) days after receipt of the properly completed application, the
Police Chief shall grant or deny the application and so notify the applicant as
follows:
(1) The Police Chief shall write or stamp "Granted" or "Denied" on the
application and date and sign such notation.
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582901 -28- 2/2/98
(2) If the application is denied, the Police Chief shall attach to the
application a statement of the reasons for denial.
(3) If the application is granted, the Police Chief shall attach to the
application a sexually -oriented business performer license.
(4) The application as granted or denied and the license, if any, shall be
placed in the United States mail, first class postage prepaid,
addressed to the applicant at the residence address stated in the
application.
(b) The Police Chief shall grant the application and issue the license unless the
application is denied for one or more of the reasons set forth in subsection
(d) of this section.
(c) If the Police Chief neither grants nor denies the application within five (5)
days after it is stamped as received (except as provided in Section 9-459(g),
the application shall be forwarded to the City Council at its next regularly
scheduled meeting for consideration in strict conformance with the provisions
of this Chapter.
(d) The Police Chief, or in the case of the Police Chief not acting within the time
period under this Section, the City Council shall deny the application for any
of the following reasons:
(1) The applicant has knowingly made any false, misleading, or
fraudulent statement of a material fact in the application for a license
or in any report or document required to be filed with the application;
(2) The applicant is under eighteen (18) years of age;
(3) The sexually -oriented business performer license is to be used for
performing in a business prohibited by State or City law.
(4) The applicant has been registered in any state as a prostitute.
(5) The applicant has been convicted of any of the offenses enumerated
in Section 9-459(d)(5) or convicted of an offense outside the State of
California that would have constituted any of the described offenses
if committed within the State of California. A license may be issued
to any person convicted of the described crimes if the conviction
occurred more than five (5) years prior to the date of the application.
(e) Each sexually -oriented business performer license shall expire one (1) year
from the date of issuance and may be renewed only by filing with the Police
Chief a written request for renewal, accompanied by the application fee and
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a copy of the license to be renewed. The request for renewal shall be made
at least thirty (30) days before the expiration date of the license. When
made less than thirty (30) days before the expiration date, the expiration of
the license will not be stayed. Applications for renewal shall be acted on as
provided herein for applications for licenses.
Sec. 9-461. Suspension or Revocation of Sexually -Oriented Business
Licenses and Sexually -Oriented Business Performer Licenses.
A sexually -oriented business license or sexually -oriented business performer license
may be suspended or revoked in accordance with the procedures and standards of this
Section.
(a) On determining that grounds for license revocation exist, the Police Chief
shall furnish written notice of the proposed suspension or revocation to the
licensee. Such notice shall set forth the time and place of a hearing, and the
ground or grounds upon which the hearing is based, the pertinent Code
sections, and a brief statement of the factual matters in support thereof. The
notice shall be mailed, postage prepaid, addressed to the last known
address of the licensee, or shall be delivered to the licensee personally, at
least ten (10) days prior to the hearing date. Hearings shall be conducted in
accordance with procedures established by the Police Chief, but at a
minimum shall include the following:
(1) All parties involved shall have a right to offer testimonial,
documentary, and tangible evidence bearing on the issues; may be
represented by counsel; and shall have the right to confront and
cross-examine witnesses. Any relevant evidence may be admitted
that is the sort of evidence upon which reasonable persons are
accustomed to rely in the conduct of serious affairs. Any hearing
under this Section may be continued for a reasonable time for the
convenience of a party or a witness. The Police Chiefs decision may
be appealed in accordance with Section 2-300 et seq. of the Costa
Mesa Municipal Code.
(b) A licensee may be subject to suspension or revocation of his/her license, or
be subject to other appropriate disciplinary action, for any of the following
causes arising from the acts or omissions of the licensee, or an employee,
agent, partner, director, stockholder, or manager of a sexually -oriented
business:
(1) The licensee 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 City.
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(2) The licensee, employee, agent, partner, director, stockholder, or
manager of a sexually -oriented business has knowingly allowed or
permitted, and has failed to make a reasonable effort to prevent the
occurrence of any of the following on the premises of the sexually -
oriented business, or in the case of a sexually -oriented business
performer, the licensee has engaged in one of the activities described
below while on the premises of a sexually -oriented business:
(i) Any act of unlawful sexual intercourse, sodomy, oral
copulation, or masturbation.
(ii) Use of the establishment as a place where unlawful
solicitations for sexual intercourse, sodomy, oral copulation, or
masturbation openly occur.
(iii) Any conduct constituting a criminal offense which requires
registration under Section 290 of the California Penal Code.
(iv) The occurrence of acts of lewdness, assignation, or
prostitution, including any conduct constituting violations of
Sections 315, 316, or 318 or Subdivision b of Section 647 of
the California Penal Code.
(v) Any act constituting a violation of provisions in the California
Penal Code relating to obscene matter or distribution of
harmful matter to minors, including but not limited to Sections
311 through 313.4.
(vi) Any conduct prohibited by this chapter.
(3) Failure to abide by an disciplinary action previously imposed by an
appropriate City official.
(c) After holding the hearing in accordance with the provisions of this Section,
if the Police Chief finds and determines that there are grounds for
disciplinary action, based upon the severity of the violation, the Police Chief
shall impose one of the following:
(1) Awarning;
(2) Suspension of the license for a specified period not to exceed six
months;
(3) Revocation of the license.
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Sec. 9-462. Appeal of Denial. Suspension or Revocation.
After denial of an application for a sexually -oriented business license or a sexually -
oriented business performer license, or after denial of renewal of a license, or suspension
or revocation of a license, the applicant or person to whom the license was granted may
seek review of such administrative action by the City Council in accordance with the
provisions of Section 2-300 et seq. of the City of Costa Mesa Municipal Code. Any
proceeding to appeal such decision to the City Council shall be filed within seven (7) days
of such decision. If the denial, suspension or revocation is affirmed on review, the
applicant, licensee may seek prompt judicial review of such administrative action pursuant
to California Code of Civil Procedure Section 1094.5. The City shall make all reasonable
efforts to expedite judicial review, if sought by the licensee.
Sec. 9-463. Sexually -Oriented Business Development and Performance
Standards.
The following development and performance standards shall be satisfied by a
sexually -oriented business and included in any approved sexually -oriented business
license:
(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 sexually -oriented 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) Parking lot lighting shall be provided to illuminate all off-street parking areas
serving such use for the purpose of increasing the personal safety of stere
patrons and employees and reducing the incidents of vandalism and theft.
The lighting shall provide a level of illumination not less than one (1) foot-
candle, measured at the surface of the pavement, at all areas or the parking
lot. The lighting shall be shown on the required plot plans and shall be
reviewed and approved by the development services department.
(d) The premises within which the sexually -oriented business is located shall
provide sufficient sound -absorbing insulation so that noise generated inside
said premises shall not be audible anywhere on any adjacent property or
public right-of-way or within any other building or other separate unit within
the same building.
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(e) A sexually -oriented business shall be open or operating for business only
between the hours of 8:00 a.m. and 11:00 p.m. on any particular day.
(f) The building entrance to a sexually -oriented business shall be clearly and
legibly posted with a notice indicating that persons under eighteen (18) years
of age are precluded from entering the premises. Said notice shall be
constructed and posted to the satisfaction of the development services
director. No person under the age of eighteen (18) years shall be permitted
within the premises at any time.
(g) All indoor areas of the sexually -oriented business within which patrons are
permitted, except rest rooms, shall be open to view by the management at
all times.
(h) Any sexually -oriented business which is also an "adult arcade", shall comply
with the following provisions:
(1) The interior of the premises shall be configured in such a manner that
there is an unobstructed view from a manager's station of every area
of the premises to which any patron is permitted access for any
purpose, excluding restrooms. Restrooms may not contain video
reproduction equipment. If the premises has two or more manager's
stations designated, then the interior of the premises shall be
configured in such a manner that there is an unobstructed view of
each area of the premises to which any patron is permitted access for
any purpose from at least one of the manager's stations. The view
required in this subsection must be direct line of sight from the
manager's station.
(2) The view area specified in subsection (5) below shall remain
unobstructed by any doors, walls, merchandise, display racks, or
other materials at all times. No patron is permitted access to any area
of the premises which has been designated as an area in which
patrons will not be permitted.
(3) No viewing room may be occupied by more than one person at any
one time.
(4) The walls or partitions between viewing rooms or booths shall be
maintained in good repair at all times, with no holes between any two
such rooms such as would allow viewing from one booth into another
or such as to allow physical contact of any kind between the
occupants of any two such booths or rooms.
(5) Customers, patrons or visitors shall not be allowed to stand idly by in
the vicinity of any such video booths, or from remaining in the
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common area of such business, other than the restrooms, who are
not actively engaged in shopping for or reviewing the products
available on display for purchaser viewing. Signs prohibiting loitering
shall be posted in prominent places in and near the video booths.
(6) The floors, seats, walls and other interior portions of all video booths
shall be maintained clean and free from waste and bodily secretions.
Presence of human excrement, urine, semen or saliva in any such
booths shall be evidence of improper maintenance and inadequate
sanitary controls; repeated instances of such conditions may justify
suspension or revocation of the owner and operator's license to
conduct the sexually -oriented establishment and/or the conditional
Use Permit.
(i) All areas of the sexually -oriented business shall be illuminated at a minimum
of the following foot-candles, minimally maintained and evenly distributed at
ground level:
Area Foot -Candles
Bookstores and other retail 20
establishments
Theaters and cabarets 5 (except during
performances, at
which times lighting
shall be at least
1.25 foot-candles)
Arcades 10
Motels/Hotels 20 (in public areas)
Modeling studios 20
(j) The sexually -oriented business shall provide and maintain separate rest
room facilities for male patrons and employees, and female patrons and
employees. Male patrons and employees shall be prohibited from using the
rest room(s) for females, and female patrons and employees shall be
prohibited from using the rest room(s) for males, except to carry out duties
of repair, maintenance and cleaning of the rest room facilities. The rest
rooms shall be free from any material depicting, describing or relating to
"specified anatomical areas" or specified sexual activities" ("Adult Material").
Rest rooms shall not contain television monitors or other motion picture or
video projection, recording or reproduction equipment. The foregoing
provisions of this paragraph shall not apply to a sexually -oriented business
5140-58
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which deals with sale or rental of adult material which is not
used or consumed on the premises, such as an adult bookstore
or adult video store, and which does not provide rest room
facilities to its patrons or the general public.
(kl The following additional performance standards shall pertain to
sexually -oriented businesses providing live entertainment involving,
depicting, describing, or relating to specified anatomical areas
and/or involving specified sexual activities:
(1) No person shall perform live entertainment for patrons of a
sexually -oriented business except upon a stage at least eighteen
(18) inches above the level of the floor which is separated by a
distance of at least ten (10) feet from the nearest area occupied
by patrons, and no patron shall be permitted within ten (10) feet
of the stage while the stage is occupied by an entertainer.
"Entertainer" shall mean any person who is an employee or
independent contractor of the sexually -oriented business, or any
person who, with or without any compensation or other form of
consideration, performs live entertainment for patrons of asexually -
oriented business.
(2) The sexually -oriented business shall provide separate dressing
room facilities for entertainers which are exclusively dedicated to
the entertainers' use.
(3) The sexually -oriented business shall provide an entrance/exit
for entertainers which is separate from the entrance/exit used by
patrons.
(4) The sexually -oriented business shall provide access for
entertainers between the stage and the dressing rooms which is
completely separated from the patrons. If such separate access is
not physically feasible, the sexually -oriented business shall provide
a minimum three (3) feet wide walk aisle for entertainers between
the dressing room area and the stage, with a railing, fence, or
other barrier separating the patrons and the entertainers capable of
(and which actually results in) preventing any physical contact
between patrons and entertainers.
(5) No entertainer, either before, during, or after performances,
shall have physical contact with any patron, and no patron shall
have physical contact with any entertainer either before, during, or
after performances by such entertainer. This subsection shall only
apply to physical contact on the premises of the sexually -oriented
business.
-35-
(6) Fixed rail(s) at least thirty (30) inches in height shall be maintained
establishing the separations between entertainers and patrons
required by this subsection.
(7) No patron shall directly pay or give any gratuity to any entertainer and
no entertainer shall solicit any pay or gratuity from any patron.
(8) No owner or other person with managerial control over a sexually -
oriented business (as that term is defined herein) shall permit any
person on the premises of the sexually -oriented business to engage
in a live showing of the human male or female genitals, pubic area or
buttocks with less than a fully opaque coverage, and/or the female
breast with less than a fully opaque coverage over any part of the
nipple or areola and/or covered male genitals in a discernibly turgid
state. This provision may not be complied with by applying an opaque
covering simulating the appearance of the specified anatomical part
required to be covered.
(1) Sexually -oriented businesses shall employ security guards in order to
maintain the public peace and safety, based upon the following standards:
(1) Sexually -oriented businesses featuring live entertainment shall
provide at least one (1) security guard at all times while the business
is open. If the occupancy limit of the premises is greater than thirty-
five (35) persons, an additional security guard shall be on duty.
(2) Security guards for other sexually -oriented businesses may be
required if it is determined by the Police Chief that their presence is
necessary in order to prevent any of the conduct listed in Section 9-
461(b)(2) of the Costa Mesa Municipal Code from occurring on the
premises.
(3) Security guard(s) shall be charged with preventing violations of law
and enforcing compliance by patrons of the requirements of these
regulations. Security guards shall be uniformed in such a manner so
as to be readily identifiable as a security guard by the public and shall
be duly licensed as a security guard as required by applicable
provisions of state law. No security guard required pursuant to this
subsection shall act as a door person, ticket seller, ticket taker,
admittance person, or sole occupant of the manager's station while
acting as a security guard.
(m) It is unlawful to sell, serve or permit the consumption of alcohol in any portion
of a structure occupied by a sexually -oriented business.
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Failure to comply with each and all of the foregoing development and performance
standards shall be grounds for suspension or revocation of the sexually -oriented business
license and/or sexually -oriented performer's license.
Sec. 9-464. Register and License Number of Employees.
(a) Every licensee of a sexually -oriented business which provides live
entertainment depicting, describing or relating to specified anatomical areas
or involving specified sexual activities must maintain a register of all persons
so performing on the premises and their license numbers. Such register
shall be available for inspection during regular business hours by any police
office or health officer of the City of Costa Mesa.
Sec. 9-465. Display of License and Identification Cards.
(a) Every sexually -oriented business shall display at all times during business
hours the license issued pursuant to the provisions of this chapter for such
sexually -oriented business in a conspicuous place so that the same may be
readily seen by all persons entering the sexually -oriented business.
(b) The Police Chief shall provide each sexually -oriented business performer
required to have a license pursuant to the chapter, with an identification card
containing the name, address, photograph and license number of such
performer.
(c) A sexually -oriented business performer shall have such card available for
inspection at all times during which such person is on the premises of the
sexually -oriented business.
Sec. 9-466. Employment of and Services Rendered to Persons Under the Age
of Eighteen (18) Years Prohibited.
(a) It shall be unlawful for any licensee, operator, or other person in charge of
any sexually -oriented business to employ, or provide any service for which
it requires such license, to any person who is not at least eighteen (18) years
of age.
(b) It shall be unlawful for any licensee, operator or other person in charge of
any sexually -oriented business to permit to enter, or remain within the
sexually -oriented business, any person who is not at least eighteen years of
age.
Sec. 9-467. Inspection.
An applicant or licensee shall permit representatives of the Police Department,
Health Department, Fire Department, Planning Division, or other City Departments or
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Agencies to inspect the premises of a sexually -oriented business for the purpose of
insuring compliance with the law and the development and performance standards
applicable to sexually -oriented businesses, at any time it is occupied or opened for
business. A person who operates a sexually -oriented business or his or her agent or
employee 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. 9-468. Regulations Nonexclusive.
The provisions of this chapter regulating sexually -oriented businesses are not
intended to be exclusive and compliance therewith shall not excuse noncompliance with
any other regulations pertaining to the operation of businesses as adopted by the City
Council of the City of Costa Mesa.
Sec. 9-469. Employment of Persons Without Permits Unlawful.
It shall be unlawful for any owner, operator, manager, or licensee in charge of or in
control of a sexually -oriented business which provides live entertainment depicting,
describing or relating to specified anatomical areas and/or involving specified sexual
activities to allow any person to perform such entertainment who is not in possession of a
valid, unrevoked sexually -oriented business performer license.
Sec. 9-470. Violations/Penalties.
With the exception of any violation of the nudity limitation under this Chapter, 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. Notwithstanding any
violation of the nudity limitation under this Chapter, 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. 9-471. Public Nuisance.
In addition to the penalties set forth above, any sexually -oriented 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 sexually -oriented business pursuant to Section
13-387.
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SECTION 6, Conflicting Ordinances Repealed.
All ordinances or parts of ordinances, or regulations in conflict with the provisions
of this Ordinance are hereby repealed.
SECTION 7. Severability
If any provision or clause of this Ordinance or the application thereof to any persons
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 8.
Pursuant to California Government Code Section 65858, the City Council finds and
determines that a current and immediate threat to the public health, peace, safety and
general welfare exists which necessitates the immediate enactment of this Ordinance for
the immediate preservation of the public health, peace, safety and general welfare based
upon the facts set forth in this Ordinance and the facts presented to the Council.
SECTION 9.
This Ordinance is hereby declared to be an urgency measure pursuant to
Government Code Section 65858 and the Ordinance shall take effect immediately upon
its adoption.
SECTION 10.
This Ordinance shall take effect and be in full force immediately. Although not
required by law, the City Council directs that a summary of this Ordinance be published
once in a newspaper of general circulation, printed and published in the City of Costa
Mesa, together with the names of the members of the City Council voting for and against
same.
PASSED AND ADOPTED this 2nd day of February, 1998.
ATTEST:
0
T•
Deputy Ci y Clerk of the City of Costa Mesa Mayor of the City of t esa
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582901 -39- 2/2/98
STATE OF CALIFORNIA 1
COUNTY OF ORANGE 1 ss
CITY OF COSTA MESA 1
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. 98-4 was introduced and considered section by section at a
regular meeting of the City Council held on the 2nd day of February, 1998, and
thereafter passed and adopted as a whole at a regular meeting of the City Council
held on the 2nd day of February, 1998, by the following roll call vote:
AYES: Buffa, Monahan, Erickson, Cowan, Somers
NOES: None
ABSENT: None
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Seal of
the City of Costa Mesa this 3rd day of February, 1998.
I
Deputy City Clerk and ex -officio Clerk of
the City CoutYcil of the City of Costa Mesa
Em