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HomeMy WebLinkAboutORD-21-98 Amend Ch 5.86 Sexually Oriented Adult BusinessesORDINANCE NO. 21- 98 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORANGE AMENDING CHAPTER 5.86 AND SECTIONS 5.10.045, 17.04.020, 17.04.038, 17.18.030, 17.18.060 17.20.030 AND 17.20.050 OF THE CITY OF ORANGE MUNICIPAL CODE RELATING TO SEXUALLY ORIENTED/ADULT BUSINESSES. RECITALS:WHEREAS, the City Council of the City of Orange ("City Council") wishes to promote the City of Orange's great interest in protecting and preserving the quality of the residential, commercial and industrial areas of the City, and the quality of life through the adoption of an ordinance which reduces the secondary effects of adult oriented businesses but does so without violating any persons constitutional rights; and WHEREAS, the City Council believes as true the studies conducted in the cities of Austin, Texas; Biloxi, Mississippi; Garden Grove, California; Indianapolis, Indiana;Los Angeles, California; and Phoenix, Arizona which show sexually oriented/ adult businesses cause secondary impacts whichdel,'fade the areas of the city in which they are located, cause a blighting effect on the city, and increase crime in general, and sex and drug related crimes in particular, in the vicinity of the sexually oriented/adult business; and WHEREAS, prior to the adoption of this Ordinance, the City Council reviewed detailed studies prepared by other jurisdictions regarding the detrimental social and economic effects on persons and properties immediately surrounding established sexuallyoriented/adult businesses. These studies included those prepared by the cities of Austin,Texas; Biloxi, Mississippi; Indianapolis, Indiana; Garden Grove, California; Los Angeles, California; and Phoenix, Arizona; and WHEREAS, the City Council believes the following statements are true, in part based upon its understanding of the experiences of cities such as Austin, Texas; Biloxi,Mississippi; Garden Grove, California; Indianapolis, Indiana; Los Angeles, California;and Phoenix, Arizona:1. Crime rates are higher in residential areas surrounding sexually oriented/ adult businesses than in commercial or industrial areas surrounding sexually oriented/ adult businesses;2. Areas within close walking distance of single and multiple fanlily dwellings should be free of sexually oriented/adult businesses;3. Sexually oriented/adult businesses should not be located in areas of the City which are in the vicinity ofresidential uses, religious institutions, parks and 4. The image of the City of Orange as a pleasant and attractive place to reside will be adversely affected by the presence of sexually oriented/adult businesses in close proximity to residential uses, religious institutions, parks, and schools; 5. The existence of sexually oriented/adult businesses in close proximity to residential areas has been shown in some cities to reduce the property values in those areas; 6. The location of sexually oriented/adult businesses on the main commercial thoroughfares of the City would cause a loss of sensitivity to the adverse effect of pornography upon children, established family relations, respect for marital relationship and for the sanctity of marriage relations of others, and the concept of non- aggressive consensual sexual relations;7. The City Council believes that allowing sexuallyoriented/adult businesses in manner provided herein is appropriate because such areas include ample accessible real estate including acreage in industrial warehouse that is easily accessible by freeways,highways and roads;8. A reasonable regulation of the location of sexually oriented/adult businesses protects the image of the community and its property values and protects its residents from the adverse secondary effects of such sexually oriented/adult businesses, while providing those who desire to patronize sexually oriented/adult businesses an opportunity to do so in appropriate areas within the City;9. Regulations for sexually oriented/adult businesses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than waiting for a problem to be created;10, Sexually oriented/adult businesses should be regulated by developing zoning which will separate such land uses from other incompatible uses; and WHEREAS, the aforementioned studies show that sex-related offenses are included within the category of secondary effects caused by unregulated or under-regulated sexually oriented/adult businesses; and WHEREAS, the City Council believes that persons who have been convicted of sex-related offenses have shown a propensity to commit such offenses and should not be permitted to operate sexually oriented/adult businesses for two (2) years after such conviction. This is because the sexually oriented nature of the business creates an increased opportunity for the commission of sex-related offenses by persons who have exhibited a propensity for the commission of such offenses; and WHEREAS, the City Council believes as true the documents and judicial decisions in the public record established and submitted in conjunction with this Ord Ordinance which demonstrate that various operational practices of sexually oriented/adult businesses increase criminal activity, including but not limited to sexually related criminal activity and illegal drug related activity, and increase the likelihood of the transmission of diseases including but not limited to sexually transmitted diseases such as gonorrhea, syphilis, herpes, and acquired immune deficiency syndrome ("AIDS") and hepatitis-B; and WHEREAS, the City Council believes the following statements are true, in part,based upon its understanding of the documents and judicial decisions in the public record established and submitted with this Ordinance:1. Evidence indicates that dancers, models, entertainers, and other persons who publicly perform Specified Sexual Activities or publicly display Specified Anatomical Parts in sexuallyoriented/adult businesses (collectively referred to as "Performers") have been found to engage in sexual activities with patrons of sexually oriented/ adult businesses on the site of the sexually oriented/adult business;2. Evidence has demonstrated that Performers at sexually oriented/ adult businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to participate with the Performers in live sex shows;3. Evidence indicates that Performers at sexuallyoriented/adult businesses have been found to engage in acts of prostitution with patrons ofthe establishment;4. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors provide a degree of privacy ("Individual Viewing Areas") regularly have been found to be used as a location where persons engage in unlawful sexual activity;5. Individual Viewing Areas have been found to contain "glory holes" in the walls joining abutting Individual Viewing Areas which are used by customers to facilitate sexual activity between the occupants of the abutting Individual Viewing Areas;6. Individual Viewing Areas have been found to be unsanitary due to the existence of semen, saliva, and blood on the walls and floors of the Individual Viewing Areas;7. Medical science has found that the AIDS and hepatitis-B viruses are carried in the semen of infected males and have a potential life span of 2 to 3 hours outside the human body;8. The existence of semen on the walls and floors of the Individual Viewing Areas can facilitate the transmission of the AIDS and hepatitis-B viruses;3 9. The practice of individuals having anonymous and/or unprotected sexual relations in Individual Viewing Areas can facilitate the transmission of the AIDS and hepatitis-B viruses as well as other sexually transmitted diseases;10. Poorly lit or unlit areas of sexually oriented/adult businesses provide a location for people to engage in illegal sexual activities;II. Police agencies have determined that some sexually oriented/adult businesses and the operators thereof have been found to be directly engaged in (as well as aid and abet) criminal and illegal sexual activity. Such individuals also have been known to use aliases;12. Many jurisdictions have found that sexually oriented/adult businesses generate excessive noise and disorderly conduct, particularly at the closing time of the sexually oriented/adult business, which creates an adverse noise public safety impact on surrounding businesses and communities; and 13. There is a need to ensure that all non-restroom public portions ofsexually oriented/adult businesses are open to public view at all times and to make sure that the business is physically designed to ensure that persons within the business do not believe that they are in a private location in order to ensure that prohibited conduct does not occur on the site. For this same reason, it is necessary to ensure that all individual viewing areas in businesses providing live entertainment contain a partition-to-partition and floor-to-ceiling plexiglass or similar physical barrier separating patrons and Performers.WHEREAS, the experiences of the cities of Palm Springs and Huntington Beach,California, indicate that disorderly conduct is likely to occur when crowds which are under the influence of alcohol become involved in sexually oriented activities; and WHEREAS, while the City Council desires to protect the rights of those who provide adult oriented entertainment, it desires to do so in a manner which decn:ases, to the greatest extent feasible, the undesirable secondary effects associated with such entertainment; and WHEREAS, based upon the evidence contained in the documents, judicial opinions, and other public records comprising the record for this Ordinance, the City Council finds as follows:I, The City has an interest in ensuring that individuals who operate sexually oriented/adult businesses have not been convicted of certain criminal offenses,particularly sexually related offenses. The application requirements contained in Chapter 5.86 of the Orange Municipal Code further that interest;2. Requiring the presence of one (I) security guard for every 50 patrons at sexually oriented/adult businesses providing live entertainment is likely to reduce the Ord No. 21- type of disorderly conduct and illegal activity observed to occur at sexually oriented/adult businesses in other jurisdictions; 3. Requiring sexually oriented/adult businesses to close at 2:00 a,m. is likely to reduce the early morning criminal activity occurring at and near sexually oriented/adult businesses, is likely to eliminate the existence of excessive noise and disorderly conduct in and around the community in the early hours of the morning;4. The requirement that sexually oriented/adultbusinesses only allow performances which are characterized by Specified Sexual Activity or feature Specified Anatomical Parts such that patrons not be pennitted within six (6) feet of the raised stage while the Performers are performing is likely to reduce the opportunities for illegal sexual activity to occur between Performers and patrons, and is particularly likely to reduce the opportunity for such illegal sexual activity to occur at the sexually oriented/adultbusiness; 5. Prohibiting live Performers in Individual Viewing Areas unless the patron is completely separated from the Performer by a floor to ceiling plexiglass or other permanent impenetrable barrier is likely to reduce the opportunity for illegal sexual and/ or drug related activity to occur between Performers and patrons and reduce the possibility of the transmission of sexually transmitted diseases between Performers and patrons; 6. Requiring the entire interior portion of Individual Viewing Areas to be visible from aisles and public areas of the sexually oriented/adult business is likely to reduce the opportunity for illegal sexual activity to occur within the Individual Viewing Area;7. Requiring areas within sexually oriented/adult businesses to be minimally illuminated to the standards contained in Chapter 5.86 is likely to reduce the opportunity for the occurrence of illegal sexual activity and/or drug transactions in dark portions of sexually oriented/adult businesses;8. Prohibiting physical contact between Performers and patrons of sexually oriented/ adult businesses is likely to reduce the opportunity for the occurrence of illegal sexual activity between patrons and Performers without limiting the expressive element of the performance;9. Prohibiting holes or openings between the interior spaces of Individual Viewing Areas is likely to reduce the opportunity for the occurrence of illegal sexual activity between the occupants ofIndividual Viewing Areas;10. Prohibiting the occupancy of more than one person in an Individual Viewing Area at any time is likely to rednce the opportunity for the Individual Viewing Area to be used for illegal sexual activity;5 Ord No. 21-98 11. Prohibiting patrons of sexually oriented/adult businesses from directly providing payments or gratuities to and prohibiting Performers from directly accepting the same is likely to reduce the opportunity for illegal sexual activity and drug transactions to occur between patrons and Performers; and WHEREAS, the City Council has reviewed each of the provisions of Chapter 5.86 and finds that the regulations contained therein have been adopted to reduce the pernicious secondary effects sexually oriented/adult businesses have been found to create; and WHEREAS, while the City Council desires to protect the rights conferred by the United States Constitution to sexually oriented/adult 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 secondary effects which the aforementioned studies have shown to be associated with the development and operation of sexually oriented/adult businesses; and WHEREAS, it is not the intent of the City in adopting this Ordinance to suppress any activities protected by the First Amendment, but rather to enact a content neutral ordinance which addresses the secondary effects sexually oriented/adult businesses have on the City; and WHEREAS, gIven the perniCIOUS secondary effects sexually oriented/adult businesses have been found to create, and given the need for regulations, the City considers sexually oriented businesses to be pervasively regulated businesses. NOW, THEREFORE, the City Council of the City of Orange hereby ordains as follows: Section 1. A new Subsection 0 of Section 5.86.020 of the Orange Municipal Code is hereby added to read in its entirety as follows: 0. HEARING OFFICER: A person selected by the City Attorney, or his/her designee, who shall preside at the hearings authorized by this chapter and issue final decisions on the matters raised therein." Section 2. Subsection E of Section 5.86.020 of the Orange Municipal Code entitled "SEXUALLY ORIENTED/ADULT BUSINESS" is hereby amended to read in its entirety as follows: E. SEXUALLY ORIENTED/ADULT BUSINESS: Any business establishment or concern, which as a regular and substantial course of conduct, performs or operates as a sexually oriented/adult book store, sexually oriented/adult theater, sexually oriented/adult motion picture arcade, sexually oriented/adult motel/hotel, sexually oriented/adult motion picture theater, nude or semi"nude model studio, sexual encounter establishment, or sells or distributes sexually oriented/adult merchandise, or any other Ord No. 21-98 business or concern which as a regular and substantial portion of its business offers to its patrons products, merchandise, services or entertainment which are distinguished or characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts, but not including those uses or activities, the regulation of which is preempted by state law. "Sexually Oriented/Adult Business" shall also include any establishment which as a regular and substantial course of conduct allows Performers, models, employees, or other persons to appear in any public place in lingerie or any similar garment which does not opaquely cover the nipples and/or areola ofthe female breast, the pubic region, and/or the natal cleft." Section 3. Subsection F of Section 5.86,020 of the Orange Municipal Code entitled "SEXUALLY ORIENTED/ADULT CABARET" is hereby amended to read in its entirety as follows: F. SEXUALLY ORIENTED/ADULT CABARET: A night club, bar, restaurant or similar establishment or concern which, as a regular and substantial course of conduct, features any type of live entertainment characterized by its emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts." Section 4. Subsection I of Section 5,86.020 of the Orange Municipal Code entitled "SEXUALLY ORIENTED/ADULT MOTION PICTURE ARCADE" is hereby amended to read in its entirety as follows: I. SEXUALLY ORIENTED/ADULT MOTION PICTURE ARCADE: Any business establishment or concern which, as a regular and substantial course of conduct, provides for the use of its customers any manually operated, coin or slug operated, or electrically or electronically operated or controlled still or motion picture or videotape machines, projectors, players or other image producing devices that are maintained to display images to five or fewer persons per machine or per viewing room at anyone time when those images are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical parts." Section 5. Subsection J of Section 5.86,020 of the Orange Municipal Code entitled "SEXUALLY ORIENTED/ADULT MOTION PICTURE THEATER" is hereby amended to read in its entirety as follows: J. SEXUALLY ORIENTED/ADULT MOTION PICTURE THEATER: A business establishment or concern which, as a regular and substantial course of conduct, projects and presents motion pictures, videotape recordings, slide photographs, or other motion or still pictures which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified anatomical parts or relating to specified sexual activities." 7 Ord No. 21- Section 6. Subsection K of Section 5.86.020 of the Orange Municipal Code entitled "SEXUALLY ORIENTED/ADULT THEATER" is hereby amended to read in its entirety as follows: K. SEXUALL Y ORIENTED/ADULT THEATER: A theater, concert hall, auditorium, or other similar establishment which, as a regular and substantial course of conduct, presents live performances which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical parts." Section 7. Subsection L of Section 5.86.020 of the Orange Municipal Code entitled "NUDE OR SEMI-NUDE MODEL STUDIO" is hereby amended to read in its entirety as follows:L. NUDE OR SEMI-NUDE MODEL STUDIO: Any place where, for consideration, a person appearing nude or semi-nude or displaying specified anatomical areas is provided for the purposes of being observed, sketched, drawn, painted,sculptured, photographed, or similarly depicted or represented as a regular and substantial course of conduct of the establishment. Classes taught by instructors licensed by the State of California on property licensed as educational facilities by the State of California are exempted from this definition."Section 8. Section 5.86.030 of the Orange Municipal Code entitled "Statements and Records" is hereby amended to read in its entirety as follows:Persons who may be required to obtain a business license pursuant to the provisions of Title 5 of this Code which provides products, merchandise, services or entertainment which is distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts, as defined in this chapter, shall maintain complete records which can be segregated with regard to all transactions involving such products, merchandise, services or entertainment which are sufficient to establish the percentage of gross receipts of the business which is derived from such transactions. Such records shall be maintained for a period of at least three (3) years from the date each such transaction occurs, The business owner or the person designated by the business owner shall redact the name, address,telephone number or other similar information on the record which identifies the person purchasing the products, merchandise, services or entertainment such that it is not visible or discernible from the face of the record. Such records need not be kept if the licensee agrees that the business is subject to the sexually oriented/ adult business permit provisions contained within this Chapter 5.86.No person required to keep records under this section shall refuse to allow authorized representatives of the Police Department or the City' s Code Enforcement Department to examine the records at reasonable times and places,"Ord Section 9. Subsection C of Section 5.86.060 of the Orange Municipal Code is hereby amended to read in its entirety as follows: C. A professionally prepared complete plot plan and floor plan, drawn to 118" scale and I/4" scale, respectively, whose dimensions are no smaller than 24" x 36", showing all property boundary lines and off-street parking, the location of all counters,equipment, partitions, sinks, plumbing, walls, electric outlets, manager's stations, and any other alteration or improvement necessary for the operation of the business, and demonstrating how the business will comply with all applicable requir<:ments of this Chapter 5. 86."Section 10. Section 5.86.070 of the Orange Municipal Code entitled " Approval or Denial of Permit" is hereby amended to read in its entirety as follows:5.86.070 Determination of Complete Application: Approval or Denial of Permit. The Business Services Coordinator shall determine whether the application contains all the information required by the provisions of this chapter. If it is determined that the application is not complete, the Business Services Coordinator shall notify the applicant within ten (10) City business days of the date of the receipt of the application,in writing, that the application is not complete and what documents and/or information is necessary for the application to be determined to be complete, The applicant shall have thirty (30) calendar days within which to submit the information necessary for the application to be deemed complete. If the applicant fails to do so within the thirty ( 30)day period, the application shall be rendered null and void and the process shall be terminated. Within five (5) City business days following the receipt of any such amended application or supplemental information, the Business Services Coordinator shall again determine whether said application is complete in accordance with the procedures set forth in this subsection. Evaluation and notification shall occur as provided above until such time as the application is found to be complete. Upon a determination that the application is complete, either upon its initial submittal or upon receipt of any amended application or supplemental information, the applicant shall be notified in writing by the Business Services Coordinator that the application is complete.Upon receipt of a completed application, the Business Services Coordinator shall submit the application to the Police, Fire, and Community Development Department for investigation and, within thirty (30) City business days thereof, shall issue the sexually oriented/adult business permit if the standards for issuance of the permit as contained within this chapter have been satisfied; otherwise, the permit shall be denied. The applicant shall be notified within five (5) City business days of the date the Business Services Coordinator issues the sexually oriented/adult business permit. If the Business Services Coordinator does not render a decision within thirty (30) City business days of receipt of a completed application, the sexually oriented/adult business shall be issued a temporary operating permit which shall vest no rights and shall be subject to compliance with all operational criteria contained within Section 5.86.080, The times set forth in this section shall not be extended except upon the written consent of the applicant. The decision of the Business Services Coordinator shall be final unless appealed to the City Manager in the manner required by this chapter.9 Ord No. All notices required by this chapter shall be deemed given upon the date of either (i) deposit of such notice in the course of transmission with the United States Postal Service, first class mail, postage prepaid, and addressed to the owner, or (ii) personal service of such notice upon the applicant. Any applicant whose permit has been denied pursuant to this chapter shall be afforded prompt judicial review as provided by law." Section I I. Subsections Al and A2 of Section 5.86.080 of the Orange Municipal Code are hereby amended to read in its entirety as follows: A. The sexually oriented/adult business is proposed to be located in a zone permitting the proposed underlying use and complies with other distance restrictions as follows: I. The sexually oriented/adult business is not proposed to be located within one thousand feet (1000') of any residential zone or legal residential use, whether such residential zone or legal residential use is within or outside the corporate boundmy of the City of Orange. 2. The sexually oriented/adult business is not proposed to be located within one thousand feet (1000') of any religious institution including but not limited to a church, synagogue, temple, or other building which is exempt from federal income tax as an organization described in Section 501(c)(3) of the Internal Revenue Code, or a successor to that section, any public park, any public or private preschool, elementary, secondary, middle, junior high or high school, whether such use is within or outside the corporate boundaries ofthe City of Orange." Section 12. Subsection E of Section 5.86,080 of the Orange Municipal Code is hereby amended to read in its entirety as follows: E. Any sexually oriented/adult business which allows patrons to remain on the premises while viewing any live, filmed or recorded entertainment, or while using or consuming the products or services supplied on the premises, shall conform to the following requirement: At least one security guard shall be on duty outside the premises, patrolling the grounds and parking areas, at all times while the sexually oriented/adult business is open to the public. If the occupancy limit ofthe premises is greater than fifty (50) persons, an additional security guard shall be on duty inside the premises, The security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of this chapter, and notifying the Orange Police Department and Code Enforcement Officer of any violations of law observed. Any security guard required by this subparagraph shall be unifonned 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 Ord No. 21-98 guard under the California State Private Security Services Act (commencing at Section 7580 of the California Business and Professions Code). No security guard required pursuant to this subparagraph shall act as a door person, ticket seller, ticket taker, or admittance person, or perform any other function while acting as a security guard." Section 13. Subsection H of Section 5.86.080 of the Orange Municipal Code is hereby amended to read in its entirety as follows: H. The premises within which the sexually oriented/adult business is located shall provide sufficient sound absorbing insulation so that the noise generated inside said premises will not disturb the peace or quiet of any adjacent property or public right- of-way or which causes discomfort or annoyance to any reasonable person of normal sensitivity residing in the area, The determination may be made by a peace officer or may be proven by the testimony of any other person."Section 14, Subsection L of Section 5.86.080 of the Orange Municipal Code is hereby amended to read in its entirety as follows:L. The interior of the sexually oriented/adult business shall be configured such that there is an unobstructed view, by use of the naked eye, and unaided by video, closed circuit cameras or any other means, of every non-restroom public area of the premises,including but not limited to the interior of all individual viewing areas, from one or more manager's stations which is no larger than thirty-two (32) square feet of floor area with no single dimension being greater than eight (8) feet and located in a public portion of the establishment. No public area, including but not limited to the interior of any individual viewing area, shall be obscured by any door, curtain, wall, one- or two-way mirror or other device which would prohibit a person from seeing into the interior of the individual viewing area using the naked eye and unaided by video, closed circuit cameras or any other means, from the manager's station. A manager shall be physically present in each of the manager's stations at all times the business is in operation or open to the public in order to enforce all rules and regulations and to ensure that no patron is pennitted access to any area in which patrons are not permitted as depicted in the application. The managers who are stationed in the manager's stations required hereunder shall not serve as Performers or perfornl any function other than to observe from the manager's station and enforce all rules and regulations and to ensure that no patron is permitted access to any area in which patrons are not permitted as depicted in the application."Section I5. Subsection S of Section 5.86.080 of the Orange Municipal Code is hereby amended to read in its entirety as follows:S. The following additional regulations shall pertain to sexually oriented/adult motion picture arcades which provide more than one viewing area:1. No alteration in the physical layout depicted in the plot plan and/or floor plan submitted as part of the application may be made without the prior approval of the Business Services Coordinator. 2. No individual viewing area may be occupied by more than one person at any onetime. 3. "Individual viewing area" shall mean a viewing area designed for occupancy by fewer than five (5) persons. Individual viewing areas of the sexually oriented/adult business shall be operated and maintained without any hole or other opening or means of direct communication or visual or physical access between the interior space 0 f two or more individual viewing areas or between an individual viewing area and any restroom. 4. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access with an illumination of not less than 10' candles, minimally maintained as measured at the floor level. 5. It shall be the duty of the owner(s) and it shall also be the duty of all employees present on the premises to ensure that the illumination described above is maintained at all times that the establishment is open for business and/or patrons are present." Section 16. Subsection T of Section 5.86.080 of the Orange Municipal Code is hereby amended to read in its entirety as follows: T. The following additional regulations shall pertain to sexually oriented/adult businesses providing live entertainment depicting specified anatomical parts or involving specified sexual activities: 1. No person shall perform live entertainment involving either the display of Specified Anatomical Parts or Specified Sexual Activities for any patron of a sexually oriented/adult business except upon a stage which is raised at least eighteen inches (18") above the level of the floor and which is separated from patrons by a fixed rail at least thirty inches (30") in height at a distance of not less than six feet (6') from the nearest area occupied by patrons while the stage is occupied by an Performer. The entertainment shall not be provided in any room designed for the individual viewing of any person unless the area where the Performer performs is separated from the patron-occupied area by a floor to ceiling and wall-to-wall physical barrier which does not allow physical contact between the Performer and the patron. For the purpose of this subsection" neither the existence of a window, two-way mirror, or similar device or the presence of a bouncer or similar employee in an individual viewing area renders this subsection inapplicable to any room otherwise designed for the individual viewing of entertainment.2, The sexually oriented/adult business shall provide separate dressing room f:lcilities for Performers which are exclusively dedicated to the Performers' use.3. The sexually oriented/adult business shall provide an entrance/exit to the premises for Performers which is separate from the entrance/ exit used by patrons. 4. The sexually oriented/adult business shall provide access for Performers between the stage and the dressing rooms which is completely separated from patrons, If such separate access is not physically feasible, the sexually oriented/adult business shall provide a minimum three foot (3') wide walk aisle for Performers between the dressing room area and the stage, with a railing, fence or other similar physical barrier which separates patrons and Performers which actually prevents any physical contact between the patrons and the Performers. 5. No Performer will intentionally have any physical contact with any patron and no patron will intentionally have any physical contact with any Performer while on the premises of a sexually oriented/adult business, 6. Fixed rails at least thirty inches (30") in height shall be maintained establishing the separations between Performers and patrons required by this chapter. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access with an illumination of not less than twenty foot (20') candle, minimally maintained, as measured at floor level. 7. No patron will directly payor give any gratuity to any Performer, and no Performer will accept any direct payment from any patron. For the purposes of this section, the phrase "directly pay" shall mean the person to person transfer of the gratuity. This section shall not prohibit the establishment of a non-human gratuity receptacle placed at least six feet (6') from the stage or area occupied by the Performer."Section 17, A new Subsection Y of Section 5,86,080 of the Orange Municipal Code is hereby added to read in its entirety as follows:Y. Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, nor any of the members, if a limited liability company or partnership, of the sexually oriented/adult business shall have been found guilty within the past two (2) years of a violation of a "specified criminal act" as defined in Section 5.86.130 of this chapter, nor shall they have been found to have violated any of the provisions of a sexually oriented/adult business permit or similar permit or license in any city, county, territory or state."Section 18. Subsection F of Section 5.86.130 of the Orange Municipal Code is hereby amended to read in its entirety as follows:F. The sexuallyoriented/adult business has been operated in violation of any of the requirements of this chapter, any permit issued to the business, or any of the provisions of Section 5.86.080 which, by way of Subsection W thereof, are deemed to be conditions of permit approval."Section 19. The last paragraph in Section 5.86,130 of the Orange Municipal Code is hereby deleted and is of no further force or effect.13 Ord No. Section 20. Subsection B.1O of Section 5.86.140 of the Orange Municipal Code is hereby amended to read in its entirety as follows: 10. A statement detailing the license or permit history of the applicant for two years immediately preceding the date of the filing of the application, including whether such applicant has ever had a license, permit, or authorization to do business denied, revoked, or suspended, or had any professional or vocational license or permit denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, the date, the name of the issuing or denying jurisdiction, and the full reasons for the denial, revocation, or suspension shall be stated. A copy of any order of denial, revocation, or suspension shall be attached to the application," Section 21. The introductory paragraph to Subsection B.12 of Section 5.86.140 of the Orange Municipal Code shall read in its entirety as follows: 12. The Business Services Coordinator shall determine whether the application contains all the information required by the provisions of this chapter. If it is determined that the application is not complete, the Business Services Coordinator shall notifY the applicant within ten (l0) City business days of the date of the receipt of the application, in writing, that the application is not complete and what documents and/or information is necessary for the application to be determined to be complete, The applicant shall have thirty (30) calendar days within which to submit the information necessary for the application to be deemed complete. If the applicant fails to do so within the thirty (30) day period, the application shall be rendered null and void and the process shall be terminated. Within five (5) City business days following the receipt of any such amended application or supplemental information, the Business Services Coordinator shall again determine whether said application is complete in accordance with the procedures set forth in this subsection, Evaluation and notification shall occur as provided above until such time as the application is found to be complete, Upon a determination that the application is complete, either upon its initial submittal or upon receipt of any amended application or supplemental information, the applicant shall be notified in writing by the Business Services Coordinator that the application is complete. Upon receipt of a completed application, the Business Services Coordinator shall submit the application to the Police Department for an investigation to be made of such information as is contained in the application, The Business Services Coordinator shall render a decision on the application within thirty (30) City business days from the date the application is deemed complete. The times set forth in this section shall not be extended except upon the written consent of the application. The decision of the Business Services Coordinator shall be final unless appealed to the City Manager in the manner required by this chapter. The Business Services Coordinator or his or her designee shall issue a license unless the report from the Police Department finds that one or more of the following findings is true:" Ord No. 21-98 Section 22. Subsection B.12.c of Section 5.86.140 of the Orange Municipal Code is hereby amended to read in its entirety as follows: c. That the applicant has been convicted of a "specified criminal act" as defined in Section 5.86.130 of this chapter within two years of the date the application is submitted to the City." Section 23. Subsection B.12.e of Section 5.86.140 of the Orange Municipal Code is hereby amended to read in its entirety as follows: e. That the applicant has had a sexually oriented/adult business employee license revoked by the City within two (2) years of the date the current application is submitted to the City," Section 24, Subsection B.12,f of Section 5.86.140 of the Orange Municipal Code is hereby amended to read in its entirety as follows: f. That the applicant has had a license, permit or other entitlement to work in a sexually oriented/adult business revoked by another jurisdiction within two (2) years of the date of the current application," Section 25. A new Subsection B.12,g of Section 5.86.140 of the Orange Municipal Code is hereby added to read in its entirety as follows: g. In the event that the Business Services Coordinator has not rendered a decision on the application within seven (7) days of the date the application is deemed complete, the applicant shall, upon request, be issued a temporary sexually oriented/adult business employee license which shall entitle the applicant to work in a sexually oriented/adult business until a decision is rendered on the application. This temporary license shall be operative for the above-reft:renced interim period only and does not conveyor confer any property rights upon the applicant. In the event that the Business Services Coordinator denies the application after the issuance of a temporary sexuallyoriented/adult business employee license, the applicant shall immediately cease and desist from any and all services it provides within a sexually oriented/adult business."Section 26. Subsection C.I of Section 5.86.140 of the Orange Municipal Code is hereby amended to read in its entirety as follows:1. A license granted pursuant to this section shall expire one year from the date of the license's issuance. No sooner than thirty (30) days prior to the expiration of the license, the licensee shall submit an annual renewal application to the Business Services Coordinator. The licensee shall be permitted to continue to provide the services for which its license was originally issued under such original license until such time as the Business Services Coordinator or his or her designee either approve the renewal applica-tion, in which case the licensee shall be operating under the renewed license, or the Business Services Coordinator or his or her designee denies the renewal application, in 15 Ord No. which case the licensee shall immediately cease and desist from providing any services within an sexually oriented/adult business. The Business Services Coordinator or his or her designee shall deny a renewal license upon finding that "any specified criminal act" as defined in Section 5.86.130 of this chapter has been committed during the previous license period or that the licensee has committed any other act during the existence of the previous license period which would have been grounds to deny the initial permit application." Section 27. Section 5.86.150 of the Orange Municipal Code is hereby amended to read in its entirety as follows: A. Any person aggrieved by any action of the City in issuing, failing to issue, suspending, or revoking any permit under this chapter, may appeal the decision by filing with the City Clerk a statement addressed to the City Manager setting forth the facts and circumstances regarding the appealed action. The City Clerk shall notify the applicant, in writing, of the time and place set forth for the hearing on his or her appeal. Notice of the hearing is to be given to the applicant not less than ten (10) City Business days before such hearing, either by registered or certified mail, postage prepaid, or in the manner required for service in civil actions. B. The right to appeal from the denial, suspension, or revocation of any permit required by this chapter shall terminate upon the expiration of fifteen (15) days following the date written notification advising the applicant of the action of the City and of his or her right to appeal such action. C. The hearing on the appeal shall be held within twenty (20) City Business days of the City Clerk's receipt of the appeal unless, in the reasonable discretion of the Hearing Officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted. The status quo shall be maintained during the appeal such that any appeal of a decision suspending or revoking any permit or license issued pursuant to this chapter shall not take effect until such time as the appeal is heard and a decision is rendered thereon. D. The appellate hearing shall be presided over by a Hearing Officer. At the hearing, the City and the applicant shall be entitled to be represented by counsel, to introduce documents, evidence, and the testimony of witnesses and shall be entitled to cross-examine each party's witnesses. The Hearing Officer shall receive all relevant evidence and shall issuehis/her findings and final decision within ten (10) City Business days of the conclusion of the hearing and shall be delivered by first class mail, postage prepaid, to the appealing party. The decision of the Hearing Officer shall be final.E. Notwithstanding anything herein to the contrary, whenever the constitution requires that prompt judicial review is necessary for a decision impinging on First Amendment expression, the City shall ensure that prompt judicial review, as provided by law, is available before the administrative decision is effective."Ord No. 21- Section 28. Section 5.IO.045 of the Orange Municipal Code is hereby amended to read in its entirety as follows: 5.IO,045 Appeal to City Manaii'er. Except as may otherwise be provided in any particular chapter of Title 5 of this Code, any person aggrieved by any decision of the Business Services Coordinator with respect to Title 5 of this Code, may appeal to the City Manager by filing a notice of appeal to the City Manager. The City Manager shall thereupon fix a time, within sixty (60) days of receipt of the notice of appeal, and a place for hearing such appeal. Notice ofthe hearing is to be given to the appellant not less than five (5) days before such hearing, either by registered or certified mail, postage prepaid, or in the manner required for the service in civil actions. The City Manager shall render a written decision on the appeal within thirty (30) days after such hearing." Section 29. The word "ADULT ENTERPRISE" defined in Section 17.04.020 of the Orange Municipal Code is hereby amended to read in its entirety as follows: ADULT ENTERPRISE - A drug paraphernalia store, massage establishment, or any establishment restricting admission to persons over 18 years of age. "Adult Enterprise" does not include establishments where the only use is the sale of alcoholic beverages and/or tobacco. The following definitions shall apply to various adult enterprises: A. Drug paraphernalia store. A business establishment or concern subject to the regulations of Chapters 5.57 and 5.96 of this Code.B. Massage establishment. A business establishment or concern defined in and subject to the regulations of Chapter 5.56 of this Code."Section 30. The word "SEXUALLY ORIENTED/ADULT BUSINESS" is hereby added to Section 17.04.038 of the Orange Municipal Code to read in its entirety as follows:SEXUALLY ORIENTED/ADULT BUSINESS - Any business establishment or concern subject to the regulation of, and more particularly defined in, Chapter 5.86 of this Code." Section 31. Table 17.18,030 in Section 17.18.030 of the Orange Municipal Code is hereby amended to add "Sexually Oriented/Adult Businesses" under the category Miscellaneous Uses" as a permitted use in the C3 zone.Section 32. Section 17.18.060 of the Orange Municipal Code is hereby amended to add a new subparagraph "Q" to read in its entirety as follows:Q. Sexually Oriented/Adult Businesses in the C3 Zone. All sexually oriented/adult businesses are subject to the regulation of Chapter 5.86 of this Code,"17 Ord No. 21-98 Section 33. Table 17.20.030 in Section 17.20.030 of the Orange Municipal Code is hereby amended to add "Sexually Oriented/Adult Businesses" under the category Miscellaneous" as a permitted use in the M2 zone. Section 34, Section 17.20.050 of the Orange Municipal Code is hereby mnended to add a new subparagraph "K to read in its entirety as follows: K. Sexually Oriented/Adult Businesses in the M2 Zone. All sexually oriented/adult businesses are subject to the regulation of Chapter 5.86 of this Code." Section 35. Should any section, subsection, clause, or provision of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional including, but not limited to, the locational and operational requirements contained in Section 5.86.080. In the event of invalidation relating to the permit process, any operating business in the City shall be deemed to be operating under a de facto permit subject to the requirements contained in Section 5,86.080. The de facto permit shall remain subject to the remaining provisions of the ordinance including, but not limited to, Section 5.86.120 (Permits Non-Transferable), Section 5.86.130 ( Enforcement,Modification and Revocation), Section 5.86.160 (Violations), Section 5.86. 170 Nuisance) and Section 5.86.180 (Remedies Cumulative).Section 36: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the Office of the City Clerk at least five (5) days prior to the City Council meeting at which this Ordinance is to be adopted.A summary of this Ordinance shall also be published once within fifteen (I5) days after its passage in a newspaper of general circulation in the City of Orange. The City Clerk shall post in the Office of the City Clerk a certified copy of the full text of the adopted Ordinance along with the names of those City Council members voting for and against the Ordinance in accordance with Government Code Section 36933,Adopted this 24th day of November 7 1998. ATTEST:UAf~u~J C~~City Clerk of the 'ty of Orange Ord No. 21- STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF ORANGE ) I, CASSANDRA J. CATHCART, City Clerk of the City of Orange, California, do hereby certifY that the foregoing Ordinance was introduced at the regular meeting of the City Council held on the 10th day of November , 1998, and thereafter at a regular meeting of said City Council duly held on the 24th day of November , 1998, was duly passed and adopted by the following vote, to wit: AYES: NOES: COUNCIL MEMBERS: MURPHY, SLATER, COONTZ, SPURGEON, ALVAREZ COUNCIL MEMBERS: NONE ABSENT: COUNCIL MEMBERS: NONE ABSTAIN: COUNCIL MEMBERS: NONE of Orange TJR 19 Ord No. 21-98