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HomeMy WebLinkAboutORD-10-96 Add Ch. 5.86 Amend Title 17 Sexually Oriented and Adult BusinessesORDINANCE NO. 10- 96 AN URGENCY MEASURE OF THE CITY COUNCIL OF THE CITY OF ORANGE ADDING CHAPTER 5. 86 AND AMENDING TITLE 17 OF THE ORANGE MUNICIPAL CODE PERTAINING TO SEXUALLY ORIENTED/ADULT BUSINESSES. THIS ORDINANCE SHALL TAKE EFFECT IMMEDIATELY IN ORDER TO PROTECT THE PUBLIC SAFETY, HEALTH AND WELFARE.WHEREAS, the City Council of the City of Orange 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 effective land use planning; and WHEREAS, the City Council, in adopting this ordinance, takes legislative notice of the existence and content of the following studies concerning the adverse secondary side effects of sexually oriented!adult businesses in other cities: Garden Grove, California (1991); Austin, Texas (1986); Taylor, Michigan (1985); Indianapolis,Indiana (1984); Phoenix, Arizona (1979); Los Angeles, California (1977); as well as the report of the Attorney General's Working Group on Regulation of Sexually Oriented!Adult Business Minnesota (1989). 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 side effects of sexually oriented!adult businesses, and more specifically fmds that these studies provide convincing evidence that: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. Crime rates' in areas in which Sexually Oriented! Adult Businesses are closely situated to each other are higher than areas in which Sexually Oriented! Adult Busine:sses are separated from each other;3. Sexually Oriented!Adult Businesses should not be located in areas of the City which are in the vicinity of residential uses, religious institutions, parks and schools;4. The image of the City of Orange as a pleasant and attractive place to reside and to conduct business will be adversely affected by the presence of Sexually Oriented! Adult Businesses in close proyimity to residential uses, religious institutions,parks lmd 5. The existence of Sexually Oriented/Adult Businesses in close proximity to residential and commercial areas has been shown in some cities to reduce the property values in those residential and commercial areas; 6. A reasonable regulation of the location of Sexually Oriented/Adult Businesses protects the image of the community and its property values and protects residents from the adverse secondary effects of such Sexually Oriented/Adult Businesses, while providing persons who desire to patronize Sexually Oriented/Adult Businesses an opportunity to do so in appropriate areas within the City; 7. Regulations for Sexually Oriented/Adult Businesses should be developed to prevent deterioration and/or degradation of the vitality of the community; 8. Sexually Oriented/Adult Businesses should be regulated by developing zoning and other regulatory mechanisms which will separate such land uses from incompatible uses; and WHEREAS, based on the foregoing, the City Council of the City of Orange fmds and determines that special regulation of Sexually Oriented/Adult Businesses is necessary to ensure that their adverse secondary side effects will not contribute to an increaSl: in crime rates or to the blighting or deterioration of the areas in which they are located or surrounding areas. The need for such special regulations is based upon the recognition that Sexually Oriented/Adult Businesses have serious objectionable charactl~ristics, particularly when several of them are concentrated under certain circumstances or located in direct proximity to sensitive uses such as parks, schools, and churches, thereby having a deleterious effect upon the adjacent areas. It is the purpose: and intent of these special regulations to prevent the concentration of Sexually Oriented/Adult Businesses and thereby prevent such adverse secondary side effects; and WHEREAS, the locational requirements established by this ordinance do not unreasonably restrict the establishment or operation of constitutionally protected Sexually Oriented/Adult Businesses in the City of Orange, and a sufficient reasonable number of appropriate locations for Sexually Oriented/Adult Businesses are provided by this ordinance; and WHEREAS, in developing this ordinance, the City Council has been mindful of legal principles relating to regulation of Sexually Oriented/Adult Businesses and does not inte:nd to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions, but instead desires to enact rc:asonable time, place, and manner regulations that address the adverse secondary effects of Sexually Oriented/Adult Businesses. The City Council has considered decisions of the United States Supreme Court regarding local regulation of adult businesses including but not limited to: Young vs. American Mini Theaters. Inc.. 427 U.S. 50 (1976) Reh. Denied 429 U.S. 873; Renton vs. Playtime Theaters. 475 U.S. 41 Ord.No.IO-96 2 SSH: 1986) Reh. Denied 475 U.S. 1132; FW/PBS. Inc. vs. Dallas. 493 U.S. 215 (1990); Barnes vs. Glenn Theater. 111 S.Ct. 2456 (1991); United States Court of Appeals 9th Circuit decisions, including but not limited to: Tooanga Press. et al. vs. City of Los Angele~ 989 F.2d (1993); and several California cases including but not limited to: City of National City vs. Wiener. 3 Cal.4th 832 (1992); People vs. Suoerior Court Lucerq), 49 Cal.3d 14 (1989); and City of Valleio vs. Adult Books. et al.. 167 Cal.App.3d 1169 (1985); and WHEREAS, the City Council of the City of Orange also determines that locational criteria alone does not adequately protect the health, safety, and general welfare: of the citizens of the City of Orange and thus certain requirements with respect to the ownership and operation of Sexually Oriented! Adult Businesses are in the public interest. In addition to the findings and studies conducted in other cities regarding increas,es 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. vs. Kitsao County. 793 F.2d 1053 (1986), regarding how live adult entertainment businesses result in secondary effects such as prostitution, drug dealing, and other law enforcement problems; and WHEREAS, the studies referred to above show that Sexually Oriented! Adult Busine:.ses are frequently used for sexual activities including prostitution and for other sexual liaisons of a casual nature in places open to the public, and therefore, the City Council of the City of Orange has a legitimate health concern over sexually transmitted diseases, including AIDS, and this legitimate health concern demands reasonable regulatilons of Sexually Oriented! Adult Businesses in order to protect the health and well-be:ing of the citizens of Orange; and WHEREAS, several courts have upheld restrlcnous on the configuration,openness, and viewability of the peep show motion picture viewing booths in adult-oriented establishments and sexually oriented businesses as a means of controlling and preven1ing the spread of sexual and communicable diseases, public and unhealthy sexual activities, prostitution, and other dangerous or unlawful sexual conduct in such booths, including: Libra Books. Inc. vs. City of Milwaukee. 818 F.Supp. 263 (E. D.Wisc. 1993); City News & Novelty vs. City of Waukesha. 487 N.W.2d 316 ( Wisc.Ct.App. 1992); Bamon Corn. vs. City of Davton. 923 F.2d 470 (6th Cir. 1991); Movie Vide:o World vs. Board of County Comm'rs. supra, 723 F.Supp. 695 (S.D. Fla. 1989);Ellwes1t Stereo Theatre. Inc. vs. Boner. 718 F.Supp. 1553 (M.D. Tenn. 1989); Berg vs.Health and Hospital Corn. of Marion County. 865 F.2d 797 (7th Cir. 1988); FW/ PBS.Inc. vs. City of Dallas. 837 F.2d 1298 (5th Cir. 1988); Postscriot Enters vs. City of Bridgeton. 699 F.Supp. 1393 (E.D. Mo. 1988); Suburban Video. Inc. vs. City of Delafie!4, 694 F.Supp. 585 (E.D. Wisc. 1988); Doe vs. City of Minneaoolis, 693 F.Supp. 774 (D. Minn. 1988); Wall Distribs.. Inc. vs. City of Newport News. 782 F. 2d 1165 (4th Cir. 1986); Broadwav Books. Inc. vs. Roberts. 642 F.Supp. 486, 492 (E. D.Tenn. 1986); Moodv vs. Bd. Of County Comm'rs, 697 P.2d 1310 (Kan. 1985); County SSH:ajj 3 Ord.No. of Sacramento vs. Suoerior Court {Goldiest 187 Cal.Rptr. 154 (Cal.Ct.App. 1982); Ellwest Stereo Theatres. Inc. vs. Wenner. 681 F.2d 1243 (9th Cir. 1982); EWAP. Inc. vs. City of Los Angeles. 158 Cal.Rptr. 579 (Cal.Ct.App. 1979); and that therefore, such restrictions are lawful and proper to adopt in this State; and WHEREAS, zoning, licensing and other police power regulations are legitimate, reasonable means of accountability to help protect the quality of life in the community of Orange and to help assure that all operators of Sexually Oriented/Adult Businesses comply with reasonable regulations and are located in places that minimize the adverse secondary effects which naturally accompany the operation of such businesses; and WHEREAS, the City Council of the City of Orange recognizes the possible harmful effects on children and minors exposed to the effects of such Sexually Oriente:d/Adult Businesses and the deterioration of respect for family values, and the need and desire of children and minors to stay away from and avoid such businesses, which I~auses children to be fearful and cautious when walking through or visiting the immediate neighborhood of such businesses; and the City Council desires to minimize and control the adverse secondary side effects associated with the operation of Sexually Oriente:d/Adult Businesses and thereby protect the health, safety, and welfare of the citizens of Orange; protect the citizens from increased crime; preserve the quality of life; preserve property values and the character of surrounding neighborhoods and businesses; deter the spread of urban blight and protect against the threat to health from the sprc~ad of communicable and sexually transmitted diseases; and WHEREAS, it is not the intent of the City Council of the City of Orange in enacting this ordinance, or any provision thereof, to condone or legitimize the distribution of obscene material, and the City of Orange recognizes that state law prohibits the distribution of the obscene materials and expects and encourages law enforce:ment officials to enforce state obscenity statutes against such illegal activities in the City of Orange; and WHEREAS, 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; and WHEREAS, existing City regulations pertaining to Sexually Oriented/Adult Businesses depend on a conditional use permit procedure and conditions imposed through such procedure to address adverse secondary effects of such businesses. Recent court decisions have substantially limited the effectiveness of such a procedure in addressing adverse secondary effects of Sexually Oriented/Adult Businesses due to the degree of discretion which is exercised, where it is applied to expressive activities Ord.No.IO-96 4 SSH: protectc:d by the First Amendment of the Constitution of the United States and State of California; and WHEREAS, without the ability to use the conditional use permit process to address the adverse secondary side effects associated with Sexually Oriented/Adult Businesses, it is urgent that this ordinance become effective inunediately in order to protect and preserve the public peace, health and safety, which would be jeopardized if the regwations contained in this ordinance were not in effect and the substantial negative secondary effects recited herein and documented by studies referred to herein, could not be mitigated. NOW, THEREFORE, mE CITY COUNCIL OF THE CITY OF ORANGE HEREBY ORDAINS AS FOLLOWS: SECTION I: Chapter 5.86 of the Orange Municipal Code is hereby added as follows: CHAPTER 5.86 SEXUALLY ORIENTED/ADULT BUSINESSES 5.86.010 Intent. 5.86.020 Definitions. 5.86.030 Statements and Records. 5.86.040 Permit Required. 5.86.050 Persons Eligible. 5.86.060 Application Requirements. 5.86.070 Approval or Denial of Permit. 5.86.080 Standards for Approval of Permit. 5.86.090 Minors and Intoxicated Persons Excluded. 5.86.100 Permit Duration. 5.86.110 Permit Renewal. 5.86.120 Permits Non- Transferable.5.86.130 Enforcement, Modification, and Revocation.5.86.140 Sexually Oriented/Adult Business Employee License.5.86.150 Hearings and Appeals.5.86.160 Violations.5.86.170 Nuisance.5.86.180 Remedies Cumulative.SSH:ajj 5 Ord.No. 5.86.010 Intent. The intent of this Section is to regulate businesses which, unless closely regulated, tend to have serious 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/Adult Businesses; interference with residential property owners' enjoyment of their property when such property is located in the vicinity of Sexually Oriented/Adult Businesses as a result of increases in crime, litter, noise and vandalism; higher crime rates ill the vicinity of Sexually Oriented/Adult 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/Adult Businesses.It is neither the intent nor the effect of this Chapter to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor the effect of this Chapter to restrict or deny access by adults to Sexually Oriented/Adult Materials or to deny access by the distributors of SexuallyOriented/Adult Businesses to their intended market.Nothing in this Chapter 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.5.86.020 Definitions. For the purpose of this Title, the following words and phraseil shall have the meanings respectively ascribed to them by this Chapter:A. "Specified Anatomical Parts":1. Less than completely and opaquely covered human genitals; pubic hair, buttocks; natal cleft; perineum; anal region; pubic hair region; or female breast below a point immediately above the top of the areola; or 2. Human male genitals ill a noticeably turgid state, even if comph:tely and opaquely covered B. "Soecified Sexual Activities":1. Actual or simulated: sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, masturbation, direct physical stimulation of unclotlled genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory function in the context of a sexual relationship; or any of the following depicte:d sexually-oriented acts or conduct, whether actual or simulated: anilingus,Ord.No.lO-96 buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, sapphism, urophilia, zooerastia, zoophilia, or 2. Clearly depicted human genitals in a state of sexual stimulation, arousall or tumescence; or 3. Use of human or animal ejaculation; or 4. Fondling or erotic or sexually-oriented touching of human genitals,pubic region, buttocks, natal cleft, anal region or female breast; or S. Masochism, erotic or sexually-oriented torture, beating or the infliction of pain; or 6. Erotic or lewd touching, fondling, or other sexually-oriented contact with an animal by a human being; or 7.irrigation; or Human excretion, urination, menstruation, vaginal or anal 8. Striptease or the removal of clothing, or the wearing of transparent or diaphanous clothing, including models appearing in lingerie, to the point where Specified Anatomical parts are exposed.C. "Semi-Nude" shall mean a state of undress in which clothing covers no more than the genitals, pubic region, and areola of the breast, as well as portions of the body covered by supporting straps or devices.D. "Sexually Oriented/Adult Bookstore": Any establishment, which as a regular and substantial portion of its business, displays and/or distributes Sexually Oriented/Adult Merchandise, books, periodicals, magazines, photographs, drawings,sculptures, motion pictures, videos, films, or other visual representations which are distinguished or characterized by an emphasis on matter depicting, describing or relating to Specified Sexual Activity or Specified Anatomical parts. Alternatively, if a substantial portion of the stock in trade, revenue obtained from such matter or advertising is characterized by an emphasis on such matter it shall be considered a Sexually Oriented/Adult Bookstore.E. "Sexually Oriented/Adult Businesses": Any business establishment or concern which as a regular and substantial course of conduct performs or operates as a Sexually Oriented/Adult Bookstore, Sexually Oriented/Adult Theater, Sexually Oriented/Adult Motion Picture Arcade, Sexually Oriented/Adult Cabaret, Sexually Oriented/Adult MotellHotel, Sexually Oriented/Adult Motion Picture Theater, Nude or Semi-Nude Model Studio, Sexual Encounter Establishment, or sells or distributes SSH: Sexually Oriented/Adult Merchandise, or any other 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 matter depicting, describing or relating to Specified Sexual Activities or Specifil:d Anatomical Parts but not including those uses or activities, the regulation of which is preempted by state law. "Sexually Oriented/Adult Businesses" shall also include any establishment which as a regular and substantial course of conduct allows perfonners, models, or employees to appear in any public place in lingerie. As used in this Chapter, the terms "regular and substantial course of conduct" and "regular and substantial portion of its business" shall mean any Sexually Oriented/Adult Business where one or more of the following exists: 1. The area(s) devoted to the display of sex-oriented merchandise and/or !.ex-oriented material exceeds fifteen (15) percent of the total display area of the business; or 2. The business or concern presents any type of live entertainment characterized by an emphasis on Specified Sexual Activity or Specified Anatomical Parts, or performers, models or employees appearing in public in lingerie on any four or more separate days within any thirty day period; or 3. At least fifty (50) percent of the gross receipts of the business are derived from the sale, trade, display or presentation of services, products, or entertainment which are characterized by an emphasis on matter depicting, describing,or relating to Specified Sexual Activity or Specified Anatomical Parts.F. "Sexually Oriented/Adult Cabaret": A nightclub, bar, restaurant or similar establishment or concern which regularly features any type of live entertainment characterized by its emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts.G. "Sexuallv Oriented/Adult HoteI/Motel": A hotel or motel, which (i) as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed-circuit television, video recorders or players or other medium, material which is distinguished or characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts; (ii) rents, leases, or lets any room for less than a ten hour period, or rents, leases or lets lmy single room more than twice in a 24-hour period.H. "Sexuallv Oriented/Adult Merchandise": Sexually oriented implements or paraphl:rnalia, such as, but not limited to: dildos, auto sucks, sexually oriented vibratoJrS, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and/or battery operated vaginas, and similar sexually oriented Ord.No. devices which are designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity. I. "Sexuallv Oriented Adult Motion Picture Arcade": Any business establi!lhment or concern containing any manually operated, coin or slug operated, or electri(:ally or electronically operated or controlled, still or motion picture or video tape 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 on a regular basis. J. "Sexuallv Oriented Adult Motion Picture Theater": A business establishment or concern which projects and presents on a regular basis motion pictures, video tape 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 Sexual Activities or Specified Anatomical Parts. K. "Sexually Oriented Adult Theater": A theater, concert or hall auditorium or similar establishment which regularly features live performances which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. L. "Nude or Semi-Nude Model Studio": Any place where a person, who appears Nude or Semi-Nude or displays Specified Anatomical Areas is provided for money or any form of consideration to be observed, sketched, drawn, painted,sculptured, photographed, or similarly depicted others on a regular basis. Exempt from this definition are classes taught by instructors licensed by the state educational system.M. "Sexual Encounter Establishment": Any business or commercial establishment, that as one of its primary business purposes, offers for any form of consideration, a place where two or more persons may congregate, associate, or consort for the purpose of Specified Sexual Activities or the exposure of Specified Anatomical Areas or activities when one or more of the persons is Nude or Semi-Nude. The definition of Sexually Oriented! Adult Businesses shall not include an establishment where a medical practitioner, psychologist, psychiatrist, or similar professional person license:d by the state engages in medically approved and recognized sexual therapy.N. "Emolovee": A person who works or performs in and!or for a sexually oriente:d business, regardless of whether or not said person is paid a salary, wage or other I;ompensation by the operator of said business. For purposes of this Chapter,employee" includes independent contractors.SSH:ajj i.86.030 Statements and Records. Person(s) who may be required to obtain a business license pursuant to the provisions of Title 5 of this Code for any business establishment 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 rcceipts of the business which is derived from such transactions. Such records shall be maintained for a period of at least three 3) years. Such records need not be kept if the licensee agrees that the business is subject to the Sexually Oriented! Adult Businesses Permit provisions. No person required to keep records under this section shall refuse to allow authorized representatives of the Police Department or the Code Enforcement Officer to exanIine said records at reasonable times and places. 86.040 Permit Reauired. It shall be unlawful for any person or entity to operate, engage in, conduct or carry on any Sexually Oriented! Adult Business within the City of Orange unless the owner of said business first obtains, and continues to maintain in full force and effect, both a Sexually Oriented!Adult Businesses Permit and a business license from the City of Orange for such business. 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 an Adult Entertainment Business Regulatory Permit. 5.86.0S0 Persons Eligible. The owner of the proposed Sexually Oriented!Adult Busine!IS, shall be the only person eligible to obtain a Sexually Oriented! Adult Business Permit. 5.86.060 Aoolication Reauirements. The following information and items shall be submitted to the Business Services Coordinator by the owner at the time of applying for a Se:xually Oriented!Adult Business Permit: A completed Sexually Oriented! Adult Business Permit application form signed by (i) ttIe owner of the proposed Sexually Oriented! Adult Business, and (ii) either the record owner of the property (or the authorized agent of the record owner) or, if the business premises are subleased to the applicant business, the sub lessor of the premisl~s, certifying under penalty of perjury that all of the information upon or submitted with the application is true and corrcct to the best of his or her information and belief. Ord.No.IO-96 10 SSH: A non refundable deposit or processing fee and a permit administration fee in the amount set by resolution of the City Council. A site plan designating the building and/or unit proposed for the Sexually Oriented! Adult Business and a dimensional interior floor plan depicting how the business will comply with all applicable requirements of this Chapter. All other information required by the Business Services Coordinator pursuant to the Sexually Oriented/Adult Business Permit Information Sheet. i.86.070 Aoproval or Denial of Permit. The Business Services Coordinator shall immediately submit the application to Police, Fire, and Planning for investigation and shall, within 30 city business days of the filing of a complete permit application, approve: and issue the Sexually Oriented/Adult Business Permit if the requirements of this Chapter have been met; otherwise the Permit shall be denied. Notice of the approval or denial of the Permit shall be given to the owner in writing by first class mail, postage prepaid, deposited in the course of the transmission with the United States Postal Service within three (3) city business days of the date of such decision. The times Sl:t forth in this subsection 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. An appeal of the decision of the Business Services Coordinator may be made by delivering a written request to the City Manager. Upon receipt of such written request, the City Manager (or designee of the City Manage:r) shall hear the appeal within fifteen (15) days of receipt of such request. A decision regarding said appeal shall then be issued no later than five (5) days following said hearing. This decision of the City Manager (or designee of the City Manager) shall be final. 86.080 Standards for Aooroval of Permit. The Business Services Coordinator shall approve and issue a Sexually Oriented/Adult Business Permit if the application and evidence submitted shows that: A. The Sexually Oriented/Adult Business is proposed to be located in a zone permitting the proposed use and complies with other distancing restrictions as follows: 1. The Sexually Oriented/Adult Business is not proposed to be located within one thousand (1,000) feet of any residential zone or residential use, whethelr such residential zone or use is within or outside the corporate boundaries of the City of Orange. 2. The Sexually Oriented/Adult Business is not proposed to be located within one thousand (1,000) feet of any lot upon which there is located any religious institution, 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 of the City of Orange. SSH:ajj II Ord.No.lO- 3 The Sexually Oriented/Adult Business is not proposed to be located within one thousand (1,000) feet of any lot upon which there is located any other Sexually Oriented/Adult Business. B. The Sexually Oriented/Adult Business will not be located, in whole or in part, within any portable structure. C. The Sexually Oriented/Adult Business will not conduct or sponsor any special events, promotions, festivals, concerts or similar activities which would increase the demand for parking spaces beyond the approved number of spaces for the business. D. The Sexually Oriented/Adult Business will not conduct any massage, acupun,~ture, tattooing, acupressure or escort services and will not allow such activities on the premises. E. Any Sexually Oriented/Adult Business which allows customers to remain on the premises while viewing any live, fIlmed or recorded entertainment, or while using or consUfiling the products or services supplied on the premises, shall conform to the foll.owing requirements: 1. At least one security guard shall be on duty outside the premises, patrolling the grounds and parking areas, at all times while the business is open. If the occupancy limit of the 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 prevenling 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 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 the state or local law. No security guard required pursuant to this subparagraph shall act as a door person, ticket seller, ticket taker, or admittance person while acting as a security guard. F. Landscaping shall conform to the standards established for the zone. G. The entire exterior grounds, including the parking lot, shall be lighted in accordance with city standards for such uses. H. The premises within which the Sexually Oriented/Adult 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 separate unit within the same building.Ord.No.IO- L No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times. J. Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance/exit to the business. K. Signage shall conform to the standards applicable to the zone and (i) such signs shall be limited to the business name and the street address and (ii) the notice required by this Chapter shall be posted on the entrance door to the premises. ll... All indoor areas of the Sexually Oriented/Adult Business within which patrons are permitted, except restrooms, shall be open to view at all times. M. Except as specifically provided in this Chapter, the Sexually Oriented/Adult Business shall comply with the zoning, parking, development and design standards applicable to the zone in which the business is located. N. No Sexually Oriented/Adult Material or Sexually Oriented/Adult Merchandise will be displayed in such manner as to be visible from any location other than within the premises occupied by the Sexually Oriented/Adult Business. O. No person under the age of 18 years shall be permitted within the premises at any time. P. The Sexually Oriented/Adult Business shall not operate or be open between the hours of 2:00 A.M. and 10:00 A.M. The foregoing shall not apply to Sexually Oriented/Adult Hotels. Q. The Sexually Oriented/Adult Business shall provide and maintain separate restroom facilities for male patrons and employees and female patrons and employees. Male patrons and employees shall be prohibited from using the restroom(s) for females, and female patrons and employees shall be prohibited from using the restroom(s) for males, except to carry out duties of repair, maintenance and cleaning of the restroom facilitit:8. 1. The restrooms shall be free from all Sexually Oriented/Adult Materials and Sexually Oriented/Adult Merchandise. Restroom(s) shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph shall not be applicable to a Sexually Oriented/Adult Business which deals exclusively with sale or rental of merchandise which is not used or consumed on the premises, such as a Sexually Oriented/Adult Bookstore, and which does not provide restroom facilities to its patrons or the general public. SSH:ajj 13 Ord.No.lO- R. Except as otherwise required by law for Sexually Oriented/Adult Motion Picture Theaters, and except as provided with regard to Sexually Oriented/Adult Motion Picture Arcades, and with regard to Sexually Oriented/Adult Businesses providing live entertainment, all areas of the Sexually Oriented/Adult Business accessible to patrons shall be illuminated at least to the extent of 20 foot-candle, minimally maintained and evenly distributed at ground level.S. The following additional regulations shall pertain to Sexually Oriented/Adult Motion Picture Arcades which provide more than one viewing area:1. Upon application for a Sexually Oriented/Adult Business Permit,the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations, the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. The diagram shall also designate the place at which the Sexually Oriented/Adult Business Permit and City business license will be conspicuously posted.Each diagram shall be oriented to the north or to some designated street or object and shall be drawn to a designated scale with marked dimensions sufficient to show the various internal dimension of all areas of the interior of the premises to an accuracy of plus or minus six (6) inches. The Business Services Coordinator shall waive the foregoing diagram for renewal applications if the owner adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared.2. No alteration in the physical layout depicted in the diagram may be made without the prior approval of the Business Services Coordinator. It is the duty of the owner(s) to insure that at least one (1) employee is on duty and situated at each managl:r's stations at all times that any patron is present inside the premises.3. The interior of the premises shall be configured in such a manner that the,re is an unobstructed view from a manager's station of every area of the premises to whi(:h any patron is permitted access for any purpose excluding restrooms. If the premisl~s has two or more manager's stations designated, then the interior of the premisl~s 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,excluding restrooms, 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. It shall be the duty of the owner(s) and it shall also be the duty of all employees present on the premisl~s to ensure that the view area specified remains unobstructed by any doors,walls, persons, merchandise, display racks or other materials at all times and to ensure that no patron is permitted access to any area in which patrons will not be permitted in the application.Ord.No.IO-96 14 4. No individual viewing area may be occupied by more than one person at anyone time. S. "Individual Viewing Area" shall mean a viewing area designed for occupancy by one person. Individual Viewing Areas of the Sexually Oriented/Adult Business shall be operated and maintained without any hole or other opening or means of dire,ct communication or visual or physical access between the interior space of two or more individual viewing areas or between an individual viewing area and any restroom. 6. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access with an illwnination of not less than ten (10) foot candle as measured at the floor level. 7. It shall be the duty of the owner(s) and it shall also be the duty of all employees present on the premises to insure that the illumination described above is maintained at all times that any patron is present on the premises. T. The following additional regulations shall pertain to Sexually Orientc:d/Adult Businesses providing live entertaimnent depicting Specified Anatomical Parts or involving Specified Sexual Activities: 1. No person shall perform live entertaimnent for patrons of a Sexually Oriented/Adult 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 six (6) feet from the nearest area occupied by patrons, and no patron shall be permitted within six (6) feet of the stage while the stage is occupied by an entertainer. 2. The Sexually Oriented/Adult Business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainer's use. 3. The Sexually Oriented/Adult Business shall provide an entranl:e/exit to the premises for entertainers which is separate from the entrance/exit used by patrons. 4. The Sexually Oriented/Adult 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 Orientl:d/Adult Business shall provide minimum three-foot wide walk aisle for entertainers between the dressing room area and the stage, with 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.SSH:ajj 15 Ord.No. S. No entertainer shall have physical contact with any patron and no patron shall have physical contact with any entertainer while on the premises. 6. Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between entertainers and patrons required by this paragraph. 7. The premises shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons are permitted access with an illun:rination of not less than twenty (20) foot candle as measured at the floor level. U. Licensee shall agree by signing the License that he/she/it will indemnify, defend and hold the City harmless from any and all claims or liability that may arise out of City's granting of such license or arising out of the operation of the Sexually Oriented/Adult Business. V. The application shall be sworn to be true and correct by the Owner under penalty ofpeljury. W. The foregoing applicable requirements of this section shall be deemed conditions of permit approval, and failure to comply with each and all of such requirements shall be grounds for revocation of the Sexually Oriented/Adult Business Permit issued pursuant to this Chapter. X. Submitting false or misleading information on the application shall constitute grounds for denial or revocation of the Sexually Oriented/Adult Business Permit. 5.86.090 Minors and Intoxicated Persons Excluded. A. It shall be a misdemeanor for any person under the age of eighteen (18) or any obviously intoxicated person to enter or remain on the premises of a Sexually Oriented/Adult Business at any time. A sign giving notice of this provision shall be prominently posted at each entrance to the premises of the Sexually Oriented/Adult Business. lB. It shall be a misdemeanor for any person having responsibility for the operation of a Sexually Oriented/Adult Business to allow any person under the age of eighteen (18) years to enter or remain on the premises of the business, whether or not such person having responsibility for the operation of a Sexually Oriented/Adult Business has knowledge that the person is under the age of eighteen (18) years; or to allow any obviously intoxicated person to enter or remain on the premises of the busines.s. Ord.No.10-96 16 SSH: For the purposes of this section, the holder of a Sexually Oriented/Adult Busine!.s Permit, when present on the premises, and the manager or other person(s) in charge of the premises, are persons having responsibility for the operation of the business. 5.86.100 Permit Duration. A Sexually Oriented/Adult Business Permit shall be valid for a period of one year from the date of permit approval. 5.86.110 Permit Renewal. A Sexually Oriented/Adult Business Permit shall be renewed on a year-to-year basis, provided that the permittee continues to meet the requirement that the Sexually Oriented/Adult Business is operated in compliance with all applicable provisions of the Chapter. A request for Permit renewal must be accompanied by a Sexually Oriented/Adult Business Permit application, completed in full detail with current information, and payment of the renewal processing fee in the amount set by ordinance or resolution of the City Council. If the application conforms to the previously approved application and the Sexually Oriented/Adult Business has not changed, the permit shall be renewed by the Business Services Coordinator for another year. Notice of such renewal, or denial, shall be given, in writing, to the permittee within thirty (30) city business days following the date of receipt of the completed renewal application. Any change or alteration in the location, nature, or operation of the Sexually Oriented/Adult Business will require a new application to be process.ed in the same manner as the original application.5.86.120 Permits Non-Transferable. No Sexually Oriented/Adult Business Permit shall be sold, transferred, or assigned by any Permit holder, or by operation of law, to any other person, group, partnership, corporation or any other entity, and any such sale, transfer or assigmnent, or attempted sale, transfer, or assigmnent shall be deemed to constitute a voluntary surrender of such Permit, and such Permit shall be thereafiter null and void. A Sexually Oriented/Adult Business Permit held by an individual in a corporation or partnership is subject to the same rules of transferability as contained above. Any change in the nature or composition of the Sexually Oriente:d/ Adult Business from one type of Sexually Oriented/Adult Business use to another type of Sexually Oriented/Adult Business use shall also render the Permit null and voiid. A Sexually Oriented/Adult Business Permit shall be valid only for the exact location specified in the Permit.5.86.130 Enforcement. Modification. and Revocation. The Permit holder shall allow officers of the City of Orange and their authorized representatives to conduct unscheduled inspections of the premises of the Sexually Oriented/ Adult Business for the pIJirpOse of ensuring compliance with the law at any time theSexually Oriente:d/Adult Business is open for business or is occupied. The Business Services Coordinator shall revoke a Sexually Oriented/Adult Business Permit when:SSH:aii 17 A. Any of the applicable requirements contained in Section 5.86.080 ceases to be satisfied. B. The application is discovered to contain incorrect, false or misleading information. C. The permit holder is convicted of a felony or misdemeanor occurring upon, or relating to the premises or lot on which the Sexually Oriented/Adult Business is located which offense is classified by the State as an offense involving a sexual crime against children, sexual abuse, rape, distribution of obscene material or material harmful to minors, prostitution or pandering, including, but not necessarily limited to the 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. D. If, on two or more occasions within a twelve (12) month period, a person or persons has (have) been convicted of a felony or misdemeanor for an offense set forth above as a result of such person's activity on the premises or property on which the Sexually Oriented/Adult Business is located, and the person(s) were employees, contrac,tors, or agents of the Sexually Oriented/Adult Business at the time the offense(s) was/we:re committed. E. If the permit holder or an employee has permitted or allowed prostitution or any ,criminal conduct on the premises. F. The Sexually Oriented/Adult Business has been operated in significant violation of any of the requirements of this Chapter or the permit issued. As an alternative to revocation, the Permit holder may be required to install video c:ameras if it is determined by the Chief of Police that such requirement would eliminate the violations. 5.86.140 Sexuallv Oriented/Adult Business Emoloyee License. A. Each individual to be employed in a Sexually Oriented/Adult Business, who engages in the services rendered by a nude model studio, sexual encounter establishment, or a live performer or entertainer shall be required to obtain a Sexually Oriented/Adult Business Employee License. Each applicant shall pay a permit fee set by separate resolution. Said fee is to cover reasonable administrative costs of the licensing application process. Masseuses are not required to have such a permit, but are required to comply with Chapter 5.86 as well as Title 17 of the Orange Municipal Code. B. Before any applicant may be issued a Sexually Oriented/Adult Business Employee License, the applicant shall submit on a form to be provided by the Business Service:s Coordinator or his or her designee, the following information: Ord.No.lO-96 18 SSH: 1. The applicant's name or any other names (including "stage" names) or aliases used by the individual; 2. Age, date and place of birth; 3.Height, weight, hair and eye color; 4.Present residence address and telephone number; s.Present business address and telephone number; 6.State driver's license or identification number; 7.Social Security number; 8. years of age; Acceptable written proof that the individual is at least eighteen (18) 9. Attached to the application form as provided above, a color photograph of the applicant clearly showing the applicant's face, and the applicant's fingerprints on a form provided by the Police Department. Any fees for the photographs and fingerprints shall be paid by the applicant; 10. A statement detailing the license or permit history of the applicant for the five (5) years inunediately preceding the date of the filing of the application, including whether such applicant previously operating or seeking to operate, in this or any other county, city, state, or country 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; 11. Whether the applicant has been convicted of a specified criminal act as defmed in Section 5.86.130 of this Ordinance. This information shall include the date, place, nature of each conviction or plea of nolo contendere and identifying the convicting jurisdiction; 12. The Business Services Coordinator or his or her designee shall refer the Sexually Oriented/Adult Business Employee License Application to the Police Department for an investigation to be made of such information as is contained on the applica.tion. The application process shall be completed within thirty (30) days from the date of the completed application is filed. After the investigation the Business Services SSH:ajj 19 Ord.No.lO- Coordinator or his or her designee shall issue a license unless the report from the Police Department fmds that one or more of the following findings is true: a. That the applicant has knowingly made any false, misleading, or fraudulent statement of a material fact in the application for a license, or any report or record required to be filed with the Police Department or other department of the City; b. That the applicant is under eighteen (18) years of age; c. That the applicant has been convicted of a "specified criminal act" as defmed in Section 5.86.130 of this Ordinance; d. That the Sexually Oriented! Adult Business Employee License: is to be used for employment in a business prohibited by local or state law, statute, rule or regulation, or prohibited by particular provisions of this Ordinance; e. That the applicant has had a Sexually Oriented! Adult Business Employee License revoked by the City within five (5) years of the date of the current application; f. That the applicant has had a similar permit or license revoked by another jurisdiction within five (5) years of the date of the application. C. Renewal of License. 1. A license granted pursuant to this Section shall be subject to annual renewal by the Business Services Coordinator or his or her designee upon the written application of the applicant and a finding by the Police Department that the applicant has not been convicted of any "specified criminal act" as defined in Section 5.86.130 of this Ordinance or committed any act during the existence of the previous license period which would be grounds to deny the initial pemrit application. 2. The renewal of the license shall be subject to payment of a fee as set by a resolution of the City Council. D. For purposes of this Section, each person meeting the definition of employee" in Section 5.86.020 shall comply with the requirements of this Section. E. A Sexually Oriented!Adult Business Employee License may be revoked if the licl:nsee significantly violates any provision of this Chapter for the terms of the Sexually Oriented! Adult Business Permit. The license may also be revoked for any conduct that would have caused a denial in the first instance. Ord.No.IO-96 20 SSH: 86. 150 Hearings and Aooeals. Any person aggrieved by a decision rendered pursuant to this Chapter may have a hearing and an appeal of said decision. An appeal of the decision of the Business Services Coordinator may be made by delivering a written request to the City Manager. Upon receipt of such written request, the City Manager ( or designee of the City Manager) shall hear the appeal within fifteen (15)days of receipt of such request. A decision regarding said appeal shall then be issued no later than five (5) days following said hearing. This decision of the City Manager or designee of the City Manager) shall be fmal.5. 86.160 Violations. No person shall operate a Sexually Oriented/Adult Business without a permit, operate such business in violation of the terms of the permit including any diagram or attachment made a part thereof, or operate such a business other than in a proper and approved location for such business. No person shall perfonn any service or entertainment for which a Sexually Oriented/Adult Business Employee License is required without such a permit. No person shall violate any provision of this Chapter. Violations shall be punished as provided in Chapter 1.08 of the Orange Municipal Code.5. 86.170 Nuisance. The City Council does hereby determine that businesses and pelrsons that operate in violation of this Chapter or any permit or license issued hereunder are a public nuisance and authorize the filing of an injunctive action to abate the same.5. 86.180 Remedies Cumulative. The remedies set forth herein are cumulative and not mutually exclusive and all legal and equitable remedies, civil and criminal, shall be available to enforce the provisions of this Chapter.SECTION II:The definition of Adult Enterprise contained in Section 17.04.020 of the Orange Municipal Code shall be amended to read as follows:Adult Enterprise - A drug paraphernalia store or massage parlor. The following definitions shall apply to adult enterprises:A. Drug Paraphernalia Store. An establishment subject to the regulations of Orange Municipal Code Sections 5.57, et seq. and/or 5.96.010, et seq.B. Massage Parlor. An establishment where, for any form of consideration,massage, alcohol rub, fomentation, electric or magnetic treatment, or similar treatment or manipulation of the human body is administered unless such treatment or manipulation is administered by a medical practitioner, chiropractor, acupuncturist, or physical therapist licensed by the State of California.SSH:ajj 21 Ord.No.lO-96 SECTION III: The following definition shall be inserted in Section 17.04.038: Sexually Oriented/Adult Business. An establishment subject to the regulation of Orange Municipal Code Chapter 5.86. SECTION IV: Table 17.18.030 shall be amended by inserting Sexually Oriented/Adult Businesses, under Adult Enterprise, as a permitted use in the C3 zone. SECTION V: Table 17.20.030 shall be amended by inserting Sexually Oriented/Adult Businesses under the category "Miscellaneous", as a permitted use in the M2 zone. SECTION VI: Section 17.34.100 shall be amended by adding the following to the existing proVlsmns: Notwithstanding the foregoing, the Director of Community Development shall be authorized to approve a plan for shared parking if the property owner proposes to restrict the hours of operation for the proposed and existing uses on the property so that the off- street parking requirement, as specified in this Chapter, is satisfied by calculating it for businesses which lire open for business at any given time.In order to receive approval of a shared parking plan by the Community Development Director, the property owner shall record a restriction against the title to the real property identifying each individual business unit, the nature of each business and the total gross floor area contained in each. The hours of operation for each business shall also be specified.This restriction on title shall limit the use of said real property to the specified businesses and to the stated hours of operation. The Director of Community Development shall be authorized to execute, on behalf of the City, a release from the terms of the deed restriction,at such. time that the off-street parking requirement for the real property can be satisfied withoult need for the shared parking plan, or a modification of the terms of the deed restriction as long as the criteria contained herein are satisfied. SECTION VII:This Ordinance is intended to supersede existing provisions of the Orange Municipal Code to the extent those existing provisions are inconsistent.Ord.No.lO-96 SECTION VIII: Severability. If any section, subdivision, paragraph, sentence, clause or phrase of this Chapter is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining portions of this Chapter. The City Council hereby declares that it would have passed this Chapter, and each section, subdivision, paragraph, sentence, clause and phrase thereof, irrespective of the fact that anyone (or more) section, subdivision, paragraph, sentence, clause or phrase had been declared invalid or unconstitutional. SECTION IX: This urgency ordinance shall take effect inunediately in order to protect the public health, safety and welfare. SECTION X: A summary of this urgency ordinance shall be published once within fifteen (15) days after this urgel:.cy ordinance is passed, in a newspaper of general circulation, published and circulated 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 such adopted urgency ordinance along with the names of those City Council members voting for and against the urgency ordinance in accordance with Government Code 36933. Adopted this 12th day of March, 1996. /; 7 A1ST: C 4.I([~~.JG~~;;t- City Clerk ofth ity of Orange SSH:ajj 23 Ord.No.lO- STATE OF CALIFORNIA) COUNTY OF ORANGE ) CITY OF ORANGE ) Cassandra Cathcart, City Clerk of the City of Orange, California, do hereby certify that the: foregoing Urgency Ordinance adopted as an urgency measure was introduced, duly passed and adopted at the regular meeting of the City Council held on the 12th day of March, 1996, by the following vote, to wit: A YES: COUNCIL MEMBERS: MURPHY, BARRERA, MAYOR COONTZ, SPURGEON, SLATER NOES: COUNCIL MEMBERS: NONE ABSENT: COUNCIL MEMBERS: NONE ABSTAIN: COUNCIL MEMBERS: NONE 1 I ,:avc- ity of Orange Ord.No.IO-96 24 SSH: