HomeMy WebLinkAbout98-11 Special Land Use Regulations, Sexually-Oriented BusinessesIQ;1011►i/_1►[i]:1►i[011114D]sfI
AN -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, SEXUALLY -
ORIENTED BUSINESSES; AMENDING CHAPTER IV OF
TITLE 9, PROVIDING FOR LICENSING AND REGULATION
OF SEXUALLY -ORIENTED BUSINESSES; AND REPEALING
SECTIONS INCONSISTENT THEREWITH.
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 fora reasonable number of appropriately located sites for
sexually -oriented businesses within the City of Costa Mesa, based upon the
following findings:
1
Y
i i r
(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 -
2
oriented businesses can cause other businesses and residents to
move elsewhere.
(4) The studies conducted in various communities in other
jurisdictions have demonstrated that sexually -oriented
businesses are linked to increases in the crime rates and
blighting of those. areas in which they are located 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,
3
it
I j C
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 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.
(1 1) 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.
4
(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 .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 1 169 (1985); and other federal
cases including Lakeland Lounge v.. City of Jacksonville (5th Cir.
1992) 973 E2d 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, Hart Bookstores, Inc. v. Edmisten (4th Cir.
1979) 612 F. 2d 821.
(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.
5:
(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;
(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.
C-9
(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 iri 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.
(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
VA
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
N
In
ri
that the licensee is the actual operator 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.
D
D. The ordinance has been reviewed for compliance with the California
Environmental Quality Act (CEQA), the CEQA Guidelines, and the city
environmental procedures and has been found to be exempt.
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:
10
WANOM
WR
qk
NO
NN
iP
kp
42. Acupressure; Massage (subject to the
F
F
r-
F_
F
F
p2
requirements of TITLE 9, CHAPTER 11, ARTICLE
22, MASSAGE ESTABLISHMENTS AND
-43. Adult businesses - See Sexually -
oriented businesses
94. Massage - see also Acupressure (subject
p2
p2
p2
p2
p2
p2
p2
'to the requirements of TITLE 9, CHAPTER 11,
ARTICLE 22, MASSAGE. ESTABLISHMENTS AND
134. exually-oriented businesses (subject to
p2.
p2
p2
p2
p2
the requirements of TITLE 9, CHAPTER IV AND
TITLE 13, CHAPTER IX, SEXUALLY -ORIENTED
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
12
i. '1
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.
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, 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".
13
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.
Adult motion picture theater. An establishment which, for any form of
consideration, is used on a regular and substantial basis to show films,
motion pictures, video cassettes, slides or similar photographic reproductions
to more than five (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,
14
t
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".
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 areola, or the showing of the covered male genitals in a
discernibly 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 or the County of Orange. -
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
15
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 State 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.
Semi-nude. A state of dress in which clothing covers- no more than the
genitals, pubic region, buttocks, areola and nipple 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 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
16
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 -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
17
i
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.
(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 onlyJn'the CL,
C1, C2, C 1-S or PDC Zones and shall be subject to the following regulations.
(a) A sexually -oriented business shall be subject to the following
restrictions:
18
(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.
(5) With the exception of the PDC zone, no building, premises,
structure or portion thereof, that contains one sexually -oriented
business shall contain any other kind of sexually -oriented
business.
(6) For those sexually -oriented businesses located within the PDC
zone, no lease or occupied space or portion thereof containing
one sexually -oriented business shall contain any other kind of
sexually -oriented business.
(7) The floor .area of any sexually -oriented business shall . not be
increased in any building, premises, structure or portion thereof
containing another sexually -oriented business.
(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, Title 9 . of the City of Costa Mesa
Municipal Code.
(c) Each person whoengages 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
19
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.
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 the nudity limitations under Chapter IV, Title 9, 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 Section 13-132, ESTABLISHMENT OF SEXUALLY -
ORIENTED BUSINESSES;
(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) It shall be unlawful and a misdemeanor to operate or cause to be
operated a sexually -oriented business _within any redevelopment area
or the Newport Boulevard Specific Plan area.
(f) 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 -
20
oriented business in any building, structure or portion thereof
containing another sexually -oriented business.
(g) 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 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 in Section 13-135 Violations/Penalties, 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
21
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, or religious institution 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"
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:
22
(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;
(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 areola, or the showing of
the coveted male 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 and nipple of the female
breast, as well as portions of the body covered by supporting straps or
23
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.
Includes 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 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
24
business or the conduct or activities occurring on the premises thereof.
(k) Applicant. A person who is required to file an application foe 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.
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.
25
(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.
W
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
27
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 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 five 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
28
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.
(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.
29
e
(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
strict conformance with the provisions of this Section 9-457(c).
30
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
31
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.
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:
32
(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 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
0 8) 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
33
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.
(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
34
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 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
35
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 Chief's 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.
(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.
36
(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) A warning;
(2) Suspension of the license for a specified period not to exceed
six months;
(3) Revocation of the license.
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
37
J
1
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 right-of-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 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.
(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
M3
(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 common area of such business, other than the restrooms,
39
A
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.
(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
40
sexual activities". 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 which deals exclusively 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.
(k) 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 0 0) 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 a
sexually -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) foot 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
41
it
A
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.
(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.
(I) 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
42
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.
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.
43
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 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 sexually -oriented
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.
44
I
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 13-17."
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. Publication
This ordinance shall take effect and be in full force thirty (30) days from and after
the passage thereof, and, prior to the expiration of fifteen (15) days from its
passage, shall be published once in the ORANGE COAST DAILY PILOT, a
newspaper of general circulation, printed and published in the City of Costa Mesa
or, in the alternative, the City Clerk may cause to be published a summary of this
Ordinance and a certified copy of the text of this Ordinance shall be posted in the
45
I . AIL I I. -
office
office of the City Clerk five (5) days prior to the date of adoption of this Ordinance,
and within fifteen (15) days after adoption, the City Clerk shall cause to be
published the aforementioned summary and shall post in the office of the City Clerk
a certified copy of this Ordinance together with the names of the members of the
City Council voting for and against the same.
PASSED AND ADOPTED this 6 tL day of 1998.
ATTEST:
Deputy ty Clerk of the City
of Costa esa
/
7emorr-M&
` �
APPROVED AS TO FORM:
^1 .
City Attorney
STATE OF CALIFORNIA }
COUNTY OF ORANGE ) ss
CITY OF COSTA MESA )
I, MARY T. ELLIOTT, Deputy City Clerk and ex -officio Clerk of the City Council
of the City of Costa Mesa, hereby certify that the above and foregoing
Ordinance No. 98-11 was introduced and considered section by section at a regular
meeting of the City Council held on the 6th day of April, 1998, and thereafter passed
and adopted as a whole at a regular meeting of the City Council held on the 20th day
of April, 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 21st day of April, 1998.
—)� i- Q.9-�� -
Deputy Ci y Clerk and ex -officio Clerk of
the City C ncil of the City of Costa Mesa
47