HomeMy WebLinkAboutOrdinance #2523 5" ` .p2..,
ORDINANCE NO. 2523
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING THE HUNTINGTON BEACH MUNICIPAL CODE
BY ADDING THERETO NEW CHAPTER 5.70 ENTITLED,
"ADULT ENTERTAINMENT BUSINESSES"
The City Council of the City of Huntington Beach does
ordain as follows :
SECTION 1. The Huntington Beach Municipal Code is hereby
amended by adding thereto new Chapter 5.70 entitled, "Adult
Entertainment Businesses" to read as follows :
5 .70.010 Definitions . The following terms used in this
chapter shall have the meanings indicated below:
(a) "Adult bookstore" - an establishment having as a sub-
stantial or significant portion of its stock in trade , books , maga-
zines or other periodicals which are distinguished or character-
ized by their emphasis on matter depicting, describing or relating
to specified sexual activities or specified anatomical areas or
an establishment with a segment or section devoted to the sale
or display of such material.
(b) "Adult business" - either (1 ) any business which is
conducted exclusively for the patronage of adults and as to which
minors are specifically excluded from patronage thereat either
by law or by the operators of such business except any business
licensed by the state Department of Alcoholic Beverage Control;
or (2) any business, other than those expressly specified in
this article where employees or patrons expose specified anatomi-
cal areas or engage in specified sexual activities; or (3) any
other business or establishment which offers its patrons services
or entertainment characterized by an emphasis on matter depicting,
exposing, describing, discussing or relating to specified sexual
activities or specified anatomical areas.
( c) "Adult motion picture theater" - an enclosed building
with a capacity of fifty or more persons, used for presenting ma-
terial distinguished or characterized by an emphasis on matter
depicting, describing or relating to specified sexual activities
or specified anatomical areas for observation by patrons therein.
(d) "Adult minimotion picture theater" - an enclosed build-
ahb
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ing with a capacity for less than fifty persons used for pre-
senting material distinguished or characterized by an emphasis
on matter depicting or relating to specified sexual activities
or specified anatomical areas for observation by patrons therein.
(e) "Adult hotel or motel" - a hotel or motel wherein ma-
terial is presented which is distinguished or characterized by an
emphasis on matter depicting, describing or relating to specified
sexual activities or specified anatomical areas.
(f) "Adult motion picture arcade" - any place to which the
public is permitted or invited wherein coin or slug-operated or
electronically, electrically or mechanically controlled still or
motion picture machines , projectors or other image-producing de-
vices are maintained to show images to five or fewer persons per
machine at any one time, and where the images so displayed are dis-
tinguished or characterized by an emphasis on depicting or de-
scribing specified sexual activities or specified anatomical areas.
(g) "Cabaret" - a nightclub, theater or other establishment
which features live performances by topless and/or bottomless
dancers, go-go dancers, exotic dancers , strippers, or similar en-
tertainers, where such performances are distinguished or charac-
terized by an emphasis on specified sexual activities or speci-
fied anatomical areas .
(h) "Encounter center" or "rap studio" - any business,
agency or person who, for any form of consideration or gratuity,
provides a place where two or more persons may congregate, as-
semble or associate for the primary purpose of engaging in, de-
scribing or discussing specified sexual activities , or exposing
specified anatomical areas .
( i) "Escort bureau; introduction services" - any business ,
agency or person who, for a fee , commission, hire, reward or profit,
furnishes or offers to furnish names of persons, or who introduces ,
furnishes or arranges for persons who may accompany other persons
to or about social affairs , entertainments or places of amusement,
or who may consort with others about any place of public resort
or within any private quarters.
( j) "Specified sexual activities" shall include any of the
following:
(1) Actual or simulated sexual intercourse, oral copu-
lation, anal intercourse, oral anal copulation, bestiality,
direct physical stimulation of unclothed genitals, flagel-
lation or torture in the context of a sexual relationship,
or the use of excretory functions in the context of a sexual
relationship, and any of the following sexually-oriented
acts or conduct: analingus , buggery, coprophagy, coprophilia,
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cunnilingus , fellatio, necrophilia, pederasty, pedophilia,
piquerism, sapphism, zooerasty; or
(2) Clearly depicted human genitals in a state of
sexual stimulation, arousal or tumescence; or
(3) Use of human or animal ejaculation, sodomy, oral
copulation, coitus , or masturbation; or
(4) Fondling or touching of nude human genitals , pubic
region, buttocks or female breast ; or
(5) 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) Human excretion, urination, menstruation, vaginal
or anal irrigation.
(k) "Specified anatomical areas" shall include any of the
following:
(1) Less than completely and opaquely covered human
genitals or pubic region; buttock; or female breast below
a point immediately above the top of the areola; or
(2) Human male genitalia in a discernibly turgid
state, even if completely and opaquely covered.
5 .70.020 Permit required. It shall be unlawful for any per-
son, association, partnership or corporation to engage in, conduct
or carry on, in or upon any premises within the city of Huntington
Beach any of the adult entertainment businesses, defined in this
chapter, without a permit so to do.
5.70.030 Application for permit. ( a) Any person, associa-
tion, partnership or corporation desiring to obtain a permit to
operate, engage in, conduct or carry on any adult entertainment
business shall make application to the chief of police, or his des-
ignated representative. Prior to submitting such application, a
nonrefundable fee, established by resolution of the city council,
shall be paid to the city clerk to defray, in part, the cost of
investigation and report required by this chapter. The city clerk
shall issue a receipt showing that such application fee has been
paid. The receipt , or a copy thereof, shall be supplied to the
chief of police at the time such application is submitted.
(b) The application for permit does not authorize the en-
gaging in, operation of, conduct of or carrying on of any adult
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entertainment business.
5 .70.040 Application contents. Each application for an
adult entertainment business permit shall contain the following
inf ormat ion:
(a) The full , true name and any other names used by the
applicant.
(b) The present address and telephone number of the appli-
cant.
(c) The previous addresses of applicant, if any, for a
period of five (5) years immediately prior to the date of the
application and the dates of residence at each.
(d) Acceptable written proof that the applicant is at
least eighteen ( 18) years of age.
( e) The applicant ' s height, weight , color of eyes and hair
and date and place of birth.
(f) Two photographs of the applicant at least 2" X 2" taken
within the last six months .
(g) Business , occupation or employment history of the appli-
cant for the five (5) years immediately preceding the date of
application.
(h) The business license history of the applicant and
whether such applicant, in previous operations in this or any
other city, state, or territory under license, has had such
license or permit for an adult entertainment business or similar
type of business revoked or suspended, the reason therefor, and
the business activity or occupation subsequent to such action
of suspension or revocation.
( i) All convictions, including ordinance violations, ex-
clusive of traffic violations, stating the dates and places of
any such convictions.
Q) If the applicant is a corporation, the name of the
corporation shall be set forth exactly as shown in its articles
of incorporation or charter, together with the place and date
of incorporation, and the names and addresses of each of its
current officers and directors, and each stockholder holding more
than 5 percent of the stock in the corporation. If the appli-
cant is a partnership, the applicant shall set forth the name,
residence address and dates of birth of the partners, including
limited partners . If the applicant is a limited partnership,
it shall furnish a copy of its certificate of limited partnership
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filed with the county clerk. If one or, more of the partners is
a corporation, the provisions of this subsection pertaining to
corporations shall apply. The applicant corporation or partnership
shall designate one of its officers or general partners to act as
its responsible managing officer. Such designated persons shall
complete and sign all application forms required of an individual
applicant under this chapter , but only one application fee shall
be charged.
(k) The name and address of the owner and lessor of the
real property upon which the business is to be conducted, and
a copy of the lease or rental agreement.
(1) Such other identification and information as the police
department may require in order to discover the truth of the
matters hereinbefore specified as required to be set forth in the
application.
(m) The chief of police shall require the applicant to fur-
nish fingerprints.
5 .70.050 Applicant to appear. The applicant, if an in-
dividual, or designated responsible managing officer, if a part-
nership or corporation, shall personally appear at the police
department of the city of Huntington Beach and produce proof
that a nonrefundable application fee , established by resolution
of the city council, has been paid and shall present the appli-
cation containing the aforementioned and described information.
5 .70.060 A lication--Invests ation. The chief of police
shall have sixty 0 days to investigate the application and
the background of the applicant . Upon completion of the inves-
tigation, the chief of police shall grant the permit if he finds:
(a) The required fee has been paid.
(b) Application conforms in all respects to the provisions
of this chapter.
( c) The applicant has not knowingly made a material mis-
representation in the application.
(d) The applicant has fully cooperated in the investigation
of his application.
(e) The applicant, if an individual, or any of the stock-
holders of the corporation, any officers or directors , if the
applicant is a corporation, or any of the partners, including
limited partners , if the applicant is a partnership, has not been
convicted in a court of competent ,jurisdiction of an offense in-
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volving conduct which requires registration under California Penal
Code section 290 , or of conduct violating Penal Code sections 314,
315, 3165 318, 647 (a) , 647 (b) and 647(h) , or convicted of an attempt
to commit any of the above-mentioned offenses, or convicted in any
state of any offense which if committed or attempted in this state ,
would have been punishable as one or more of the abovementioned
offenses , or any crime involving dishonesty, fraud, deceit , or
moral turpitude.
( f) Applicant has not had an adult entertainment business
permit or other similar license or permit denied or revoked for
cause by this city or any other city located in or out of this
state prior to the date of application.
(g) The building, structure, equipment or location of such
business , as proposed by applicant, would comply with all appli-
cable laws , including but not limited to, health , zoning, fire and
safety requirements and standards.
(h) The applicant is at least eighteen years of age.
( i) That the applicant, his or her employee, agent, partner,
director, officer, stockholder or manager has not within two (2)
years of the date of the application knowingly allowed or per-
mitted any act of sexual intercourse , sodomy, oral copulation, or
masturbation to be committed or allowed in or upon the premises
where such adult entertainment business is to be located, or to
be used as a place in which solicitations for sexual intercourse,
sodomy, oral copulation or masturbation openly occur.
( j) That on the date that the business for which a permit
is required herein commences , and thereafter, there will be a re-
sponsible person on the premises to act as manager at all times
during which the business is open.
5.70.070 Permit--Refusal--Appeal . If the chief of police,
following investigation of the applicant, deems that the appli-
cant does not fulfill the requirements as set forth in this
chapter, he shall notify the city administrator of such opinion
and, within sixty (60) days of the date of application, provide
copies of the investigation report to the city administrator.
The city administrator shall within ten ( 10) days , grant the
permit or deny the application and notify applicant by certified
mail of such denial. Any applicant who is denied a permit by
the city administrator may appeal such denial to the city council
pursuant to provisions of this chapter.
5 .70.080 Permit renewal. Permits for adult entertainment
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businesses may be renewed on a year-to-year basis provided that
the permittees continue to meet the requirements set out in this
chapter. The renewal fee for adult entertainment businesses per-
mits shall be established by resolution of the city council.
5 .70.090 Permits nontransferable. No adult entertainment
business permit may be sold, transferred or assigned by a per-
mittee, or by operation of law, to any other person or persons.
Any such sale, transfer or assignment, or attempted sale, trans-
fer or assignment, shall be deemed to constitute a voluntary sur-
render of such permit and such permit shall thereafter be null and
void; provided and excepting, however, that if the permittee is a
partnership and one or more of the partners should die, one or
more of the surviving partners may acquire, by purchase or other-
wise, the interest of the deceased partner or partners without ef-
fecting a surrender or termination of such permit, and in such case,
the permit, upon notification to the chief of police, shall be
placed in the name of the surviving partners. An adult entertain-
ment business permit issued to a corporation shall be deemed ter-
minated and void when either any outstanding stock of the corpor-
ation is sold, transferred or assigned after the issuance of a
permit , or any stock authorized but not issued at the time of the
granting of a permit is thereafter issued and sold, transferred
or assigned.
5 .70.100 Adult entertainment businesses--Change of location
or name. a No adult entertainment business shall move from
the location specified on its permit until a change of location
fee, established by resolution of the city council, has been de-
posited with the city, and approval has been obtained from the
chief of police and the department of development services . Such
approval shall not be given unless all requirements and regula-
tions, as contained in the city' s codes, have been met.
(b) No permittee shall operate, conduct, manage, engage in,
or carry on an adult entertainment business under any name other
than his name and the name of the business as specified on his
permit .
( c) Any application for an extension or expansion of a
building or other place of business where an adult entertainment
business is located shall require inspection and shall comply with
the provisions and regulations of this chapter.
5.70. 110 Permit suspension and revocation. The city
administrator may, based on evidence that any of the provisions
of this chapter have been violated, suspend or revoke a permit;
provided that written notice by certified mail of such suspen-
sion or revocation is furnished the permittee. The permittee,
within ten (10) days after receipt ,of notice of suspension or
revocation, may file an appeal with the city clerk to be taken to
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the city council . In the event an appeal is timely filed, the
suspension or revocation shall not take effect until final de-
cision has been rendered by the council. If the permittee fails
to take an appeal within the ten-day filing period provided herein,
suspension or revocation shall take effect immediately upon ex-
piration of such filing period.
5 .70.120 Permit pre-revocation hearing. (a) Upon receipt
of evidence of a violation of this chapter, the city administra-
tor, or his designee, shall conduct a hearing within ten (10) days .
Such hearing shall be governed by the rules and procedures contained
in this chapter. Permittee shall be notified by certified mail
of the time and place of the hearing.
(b) If the city administrator, or his designee, renders
a decision at the conclusion of the hearing, such decision shall
immediately become effective and remain so until an appeal is
taken to the city council and the council renders its decision
in the matter. If the city administrator , or his designee, does
not render a decision at the conclusion of the hearing, such de-
cision shall be given permittee by certified mail not later than
two (2 ) working days following the conclusion of the hearing. The
decision of the city administrator shall then become effective two
( 2) working days from the date of the mailing of the certified
notice.
( c) The decision of the city administrator , or his designee,
may be appealed to the city council pursuant to the procedure con-
tained in this chapter, and the permittee shall have the burden
of proving that the decision, rendered by the city administrator,
or his designee, was unreasonable, erroneous or a clear abuse of
discretion.
5 .70.130 Appeal procedure. The permittee shall , within
ten (10) days after he has been notified of an adverse determina-
tion, submit a notice of appeal to the city clerk.
The notice of appeal shall be addressed to the council and
shall specify the subject matter of the appeal , the date of any
original and amended applications or requests , the date of the
adverse decision (or receipt of notice thereof) , the basis of the
appeal, the action requested of the council, and the name and
address of the applicant.
The clerk shall place the appeal on the agenda of the next
regular council meeting occurring not less than five (5) nor
more than thirty (30) days after receipt of the application for
council action.
5 .70.140 Appeal--Council determines procedure. When an
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appeal is placed on the council agenda, the council may take
either of the following actions :
(a) Set a hearing date and instruct the city clerk to give
such notice of hearing as may be required by law.
(b) Appoint a hearing officer and fix the time and place
for hearing. The hearing officer may not be a city employee,
and may be appointed for an extended period of time. The clerk
shall assume responsibility for such publication of notice of
the hearing as may be required by law. If a hearing officer is
appointed, the hearing shall be conducted in accordance with
the procedures set out in this chapter.
5 .70.150 City council hearing. Whenever the city clerk has
scheduled an appeal before the city council , at the time and date
set therefor, the council shall receive all relevant testimony
and evidence from the permittee, from interested parties and from
city staff. The city council may sustain, overrule or modify the
action of the city administrator. The action of the city council
shall be final.
5 .70.160 Powers of hearing officer. The hearing officer,
appointed pursuant to the procedure set out in this chapter,
may receive and rule on admissibility of evidence, hear testi-
mony under oath and call witnesses as he may deem advisable with
respect to the conduct of the hearing.
5 .70.170 Rules of evidence inapplicable. The city council
and the hearing officer shall not be bound by the traditional
rules of evidence in hearings conducted under this chapter.
5 .70.180 Hearing officer--Report. The hearing officer
shall, within a reasonable time not to exceed thirty (30 ) days
from the date such hearing is terminated, submit a written re-
port to the council. Such report shall contain a brief summary
of the evidence considered and state findings, conclusions and
recommendation. All such reports shall be filed with the city
clerk, and shall be considered public records. A copy of such
report shall be forwarded by certified mail to the permittee/
appellant the same day it is filed with the city clerk, with
additional copies furnished the city administrator and chief of
police.
The city clerk shall place the hearing officer' s report on
the agenda of the next regular council meeting occurring not
less than ten (10) days after the report is filed and shall
notify the permittee/appellant of the date of such meeting at
least ten (10 ) days prior to the meeting unless the permittee/
appellant stipulates to a shorter notice period.
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5 .10.110 Hearing officer report--Action by council. The
council may adopt or reject the hearing officer' s decision in
its entirety or may modify the proposed recommendation. If the
council does not adopt the hearing officer' s recommendation, it
may :
(a) Refer the matter to the same or another hearing
officer for a completely new hearing, or for the taking of ad-
ditional evidence on specific points , in either of such cases
the hearing officer shall proceed as provided in this chapter.
(b) Decide the case upon a review of the entire record
before the hearing officer with or without taking additional
evidence.
5 .70.200 Violation--Penalty . Any person violating the
provisions of this chapter shall be guilty of a misdemeanor,
punishable by a fine of five hundred dollars ( $500) or by im-
prisonment in the county jail for a period not to exceed six (6)
months , or by both such fine and imprisonment.
5 .70.210 Unlawful operation declared nuisance. Any adult
entertainment business operated, conducted or maintained contrary
to the provisions of this chapter shall be and the same is here-
by declared to be unlawful and a public nuisance. The city
attorney may, in addition to, or in lieu of prosecuting a
criminal action hereunder, commence an action or actions , pro-
ceeding or proceedings for abatement , removal or enjoinment
thereof, in the manner provided by law. He shall take such other
steps and shall apply to such court or courts as may have juris-
diction to grant such relief as will abate or remove such adult
entertainment business and restrain and enjoin any person from
f operating, conducting or maintaining an adult entertainment busi-
ness contrary to the provisions of this chapter.
SECTION 2. SEVERABILITY. The City Council of the City of
Huntington Beach hereby declares that should any section, para-
graph, sentence or word of this ordinance, hereby adopted, for
any reason be declared invalid, it is the intent of the Council
that it would have passed all other portions of this ordinance
independent of the elimination heref rom of any such portion as
may be declared invalid.
SECTION 3. This ordinance shall take effect thirty days
after its adoption.
PASSED AND ADOPTED by the City Council of the City of
Huntington Beach at a regular meeting thereof held on the 16th
10 .
day of November 1981.
Mayor
ATTEST : APPROVED AS TO FORM:
j 'City Clerk City Attorney
REVIEWED AND APPROVED : INITIATED AND APPROVED:
City Administra or Chief o Police
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Ord. No. 2523
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss:
CITY OF HUNTINGTON BEACH )
I, ALICIA M. WENTWORTH, the duly elected, qualified City
Clerk of the City of Huntington Beach and ex-officio Clerk of the
City Council of the said City, do hereby certify that the whole number
of members of the City Council of the City of Huntington Beach is seven;
that the foregoing ordinance was read to said City Council at a regular
meeting thereof held on the 2nd_ day of November
19 and was again read to said City Council at a regular
meeting thereof held on the 16th day of November 19 81 and
was passed and adopted by the affirmative vote of more than a majority of
all the members of said City Council.
AYES: Councilmen:
MacAllister, Pattinson, Finley, Bailey, Mandic, Kelly
NOES: Councilmen:
None
ABSENT: Councilmen:
Thomas
City Clerk and ex-officio C1er
of the City Council of the City
of Huntington Beach, California
+. Aiicia M. Wentworth CITY IPLERK of the City of
Hu"VtWon i3each and ex-o{fjt^io Clerk at the City
Couned. do hereby :"Wy Lnat a synopsis of oft
ordinance has been published in the flung
Beach independent on
19
In amordance with the City C3ra....
Of Said City,
City Clerk
Deputy City Clerk