HomeMy WebLinkAboutOrdinance #3341 EMERGENCY ORDINANCE NO. 3341.
AN EMERGENCY ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING
THE HUNTINGTON BEACH MUNICIPAL CODE AND THE HUNTINGTON BEACH
ZONING AND SUBDIVISION CODE TO PROVIDE REGULATION FOR ADULT
BUSINESSES
The Council of the City of Huntington Beach does ordain as follows:
SECTION 1. FINDINGS. The City Council of the City of Huntington Beach hereby finds that:
(a) The City Council of Huntington Beach, in adopting this ordinance, takes legislative notice of
the existence and content of the following studies concerning the adverse secondary side effects
of Sex Oriented Businesses in other cities: Garden Grove, California(1991); Tucson, Arizona
(1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma(1986);
Indianapolis, Indiana(1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis,
Minnesota (1980); Phoenix, Arizona(1979); Whittier, California(1978); Amarillo, Texas
(1977); Cleveland, Ohio (1977); Los Angeles, California(1977). 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 Sex Oriented Businesses, and more specifically
finds that these studies provide convincing evidence that:
(1) Sex Oriented Businesses are linked to increases in the crime rates in those areas in
which they are located and in surrounding areas.
(2) Both the proximity of Sex Oriented Businesses to sensitive land uses and the
concentration of Sex Oriented Businesses tend to result in the blighting and deterioration of the
areas in which they are located.
(3) The proximity and concentration of Sex Oriented Businesses adjacent to residential,
recreational, religious, educational and other Sex Oriented Business uses can cause other
businesses and residences to move elsewhere.
(4) There is substantial evidence that an increase in crime tends to accompany,
concentrate around, and be aggravated by Sex Oriented Businesses, including but not limited to
an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence
against persons and property. The studies from other cities establish convincing evidence that
Sex Oriented Businesses which are not regulated as to permissible locations often have a -
deleterious effect on nearby businesses in residential areas, causing, among other adverse
secondary effects, an increase in crime and a decrease in property values.
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(b) Based on the foregoing, the City Council of the City of Huntington Beach finds and
determines that special regulation of Sex Oriented Businesses is necessary to ensure that their
adverse secondary side effects will not contribute to an increase 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 Sex Oriented Businesses have serious
objectionable operational characteristics, particularly when several of them are concentrated
under certain circumstances or located in direct proximity to sensitive uses such as parks,
schools, 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 Sex Oriented Businesses
and thereby prevent such adverse secondary side effects.
(c) The locational requirements established by this ordinance do not unreasonably restrict the
establishment or operation of constitutionally protected Sex Oriented Businesses in the City of
Huntington Beach, and a sufficient reasonable number of appropriate locations for Sex Oriented
Businesses are provided by this ordinance.
(d) In developing this ordinance, the City Council has been mindful of legal principles relating to
regulation of Sex Oriented Businesses and does not intend to suppress or infringe upon any
expressive activities protected by the First Amendments of the United States and California
Constitutions, but instead desires to enact reasonable time,place, and manner regulations that
address the adverse secondary effects of Sex Oriented Businesses. The City Council,has
considered decisions of the United States Supreme Court regarding local regulation of Sex
Oriented Businesses, including but not limited to: Young v. American Mini Theaters. Inc., 427
U.S. 50 (1976) Reh. Denied 429 U.S. 873; Renton v; Playtime Theaters, 475 U.S. 41 (1986) Reh.
Denied 475 U.S. 1132; FW/PBS. Inc. v. Dallas, 493 U.S.215 (1990); Barnes v. Glenn Theater,
111 S.Ct. 2456 (1991); United States Court of Appeals 9th Circuit decisions, including but not
limited to: Topanga Press. et al. v. City of Los Angeles, 989 F.2d 1524 (1993); several California
cases including but not limited to: City of National City v. Wiener, 3 CalAth 832 (1992); People
v. Superior Court(Lucero)49 Cal.3d 14 (1989); and City of Vallejo v. Adult Books.et al., 167
Cal.App.3d 1169 (1985); and other federal cases including Lakeland Lounge v. City of
Jacksonville (5th Cir. 1992) 973 F.2d 1255, Hang On. Inc. v. Arlington (5th Cir. 1995) 65 F.3d
1248, Mitchell v. Commission on Adult Entertainment (3rd Cir. 1993)10 F.3d 123, International
Eateries v. Broward County(lath Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi
(5th Cir. 1986) 779 F.2d 1074.
(e) The City Council of the City of Huntington Beach finds that locational criteria alone do not
adequately protect the health, safety, and general welfare of the citizens of the City of Huntington
Beach, and thus certain requirements with respect to the ownership and operation of Sex
Oriented Businesses are in the public interest. In addition to the findings and studies conducted
in other cities regarding increases in crime rates, decreases in property values and the blighting of -
areas in which such businesses are located, the City Council also takes legislative notice of the
facts recited in the case of Kev. Inc. v. Kitsap County, 793 F.2d 1053 (1986), regarding how live
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adult entertainment results in secondary effects such as prostitution, drug dealing, and other law
enforcement problems.
(f) The City Council finds the following, in part based upon its understanding of the documents
and judicial decisions in the public record:
(1) Evidence indicates that some dancers, models and entertainers, and other persons who
publicly perform specified sexual activities or publicly display specified anatomical parts in Sex
Oriented Businesses (collectively referred to as 'performers')have been found to engage in sexual
activities with patrons of Sex Oriented Businesses on the site of the Sex Oriented Business;
(2) Evidence has demonstrated that performers employed by Sex Oriented Businesses
have been found to offer and provide private shows to patrons who, for a price, are permitted to
observe and participate with the performers in live sex shows;
(3) Evidence indicates that performers at Sex Oriented Businesses have been found to
engage in acts of prostitution with patrons of the establishment;
(4) Evidence indicates that fully enclosed booths, individual viewing areas, and other
small rooms whose interiors cannot be seen from public areas of the establishment regularly have
been found to be used as a location for engaging in unlawful sexual activity;
(5)As a result of the above, and the increase in incidents of AIDS and Hepatitis B. which
are both sexually transmitted diseases, the City has a substantial interest in adopting regulations
which will reduce, to the greatest extent possible, the possibility for the occurrence of
prostitution and casual sex acts at Sex Oriented Businesses.
(g)Zoning, licensing and other police power regulations are legitimate, reasonable means of
accountability to help protect the quality of life in the community of Huntington Beach and to
help assure that all operators of Sex Oriented Businesses comply with reasonable regulations and
are located in places that minimize the adverse secondary effects which naturally accompany the
operation of such businesses.
(h)The City Council of the City of Huntington Beach recognizes the possible harmful effects on
children and minors exposed to the effects of such Sex Oriented 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 causes 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 Sex
Oriented Businesses and thereby protect the health, safety, and welfare of the citizens of -
Huntington Beach; protect the citizens from increased crime; preserve the quality of life;
preserve property values and the character of surrounding neighborhoods and businesses; deter
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the spread of urban blight and protect against the threat to health from the spread of
communicable and sexually transmitted diseases.
(i) It is not the intent of the City Council of the City of Huntington Beach in enacting this
ordinance, or any provision thereof, to condone or legitimize the distribution of obscene material,
and the City of City of Huntington Beach recognizes that state law prohibits the distribution of
the obscene materials and expects and encourages law enforcement officials to enforce state
obscenity statutes against such illegal activities in the City of Huntington Beach.
0)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
(k) The City Council finds that preventing the exchange of money between entertainers and
patrons also reduces the likelihood of drug and sex transactions occurring in Sex Oriented
Businesses; and
(1) Requiring separations between entertainers and patrons reduces the likelihood that such
persons will negotiate narcotics sales and/or transact sexual favors within the Sex Oriented
Business.
(m) Enclosed or concealed booths and dimly lit areas within Sex Oriented Businesses greatly
increase the potential for misuse of the premises, including unlawful conduct of a type which
facilitates transmission of disease. Requirements that all indoor areas be open to view by
management at all times, and that adequate lighting be provided are necessary in order to reduce
the opportunity for, and therefore the incidence of illegal conduct within Sex Oriented
Businesses, and to facilitate the inspection of the interior of the premises thereof by law
enforcement personnel.
SECTION 2. AMENDMENT OF HUNTINGTON BEACH MUNICIPAL CODE CHAPTER
5.70. ENTITLED "ADULT ENTERTAINMENT BUSINESSES". Huntington Beach Municipal
Code Chapter 5.70 is hereby amended to be entitled"Sex Oriented Businesses."
SECTION 3. AMENDMENT OF HUNTINGTON BEACH MUNICIPAL CODE CHAPTER
5.70. ENTITLED "ADULT ENTERTAINMENT BUSINESSES". Huntington Beach Municipal
Code Chapter 5.70 is amended in its entirety to read as follows:
5.70.05 Purpose The intent of this ordinance 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 Sex Oriented Businesses;
interference with residential property owners enjoyment of their property when such property is
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located in the vicinity of Sex Oriented Businesses as a result of increases in crime, litter, noise
and vandalism; higher crime rates in the vicinity of Sex Oriented Businesses; and blighting
conditions such as low level maintenance of commercial premises and parking lots, which
thereby have a deleterious effect upon adjacent areas. Special regulation of these businesses is
necessary to prevent these adverse effects and the blighting or degradation of the neighborhoods
in the vicinity of the Sex Oriented 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 Sex Oriented Materials or to deny access by the
distributors or exhibitors of Sex Oriented 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.
5.70.010 Definitions
(a) Cabaret. The term"cabaret" a nightclub,theater or other establishment which
features live performances distinguished or characterized by an emphasis on specified sexual
activities or specified anatomical areas.
(b) Chief of Police. Chief of Police means the Chief of Police or his or her designee.
(e) Church. The term"church" as used in this article, is a structure which is used
primarily for religious worship and related religious activities.
(d) City Administrator. City Administrator means City Administrator or his or her
designee.
(e) Distinguished or characterized by an emphasis upon. As used in this ordinance, the
term "distinguished or characterized by an emphasis upon" shall mean and refer to the dominant
or essential theme of the object described by such phrase. For instance, when the phrase refers to
films "which are distinguished or characterized by an emphasis upon" the depiction or
description of specified sexual activities or specified anatomical areas, the films so described are
those whose dominant or predominant character and theme are the depiction of the enumerated
sexual activities or anatomical areas. See Pringle v. City of Covina, 11S Ca1.App.3 151 (1981).
(f) Encounter Center. "Encounter center" or"rap studio' any business, agency or person who, for any form of compensation, consideration or gratuity,provides a place where two or
more persons may congregate, assemble or associate for the primary purpose of engaging in,
describing or discussing specified sexual activities, or exposing specified anatomical areas.
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(g) Escort Bureau; Introduction Services. "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.
(h) Owner or Pen-nit holder or Permittee.For purposes of this Chapter, "Owner", "Permit
holder" or "Pennittee" shall mean any of the following. (i) the sole proprietor of a Sex Oriented
or(ii) any general partner of a partnership which owns and operates a Sex Oriented Business; or
(iii) the owner of a controlling interest in a corporation which owns and operates a
Sex Oriented Business; or (iv) the person designated by the officers of a corporation to be the
Permit holder for a Sex Oriented Business owned and operated by the corporation.
(i) Director of Community Development. The term Director of Community
Development means the Director of Community Development or his or her designee.
(j) Regularly Features. The term "regularly features" with respect to an Sex Oriented
theater or Sex Oriented cabaret means a regular and substantial course of conduct. The fact that
live performances which are distinguished or characterized by an emphasis upon the display of
specified anatomical areas or specified sexual activities occurs on two (2) or more occasions
within a thirty (30) day period; three (3) or more occasions within a sixty(60) day period; or four
(4) or more occasions within a one hundred and eighty (IS0) day period, shall to the extent
permitted by law be deemed to be a regular and substantial course of conduct.
(k) School. The terFn"school" as used in this ordinance is any child or day care
facility, or an institution of learning for minors,whether public or private, offering instruction in
those courses of study required by the California Education Code and maintained pursuant to the
standards set by the State Board of Education. This definition includes a nursery school,
kindergarten, elementary school, middle or junior high school, senior high school, or any special
institution of education, but it does not include a vocational or professional institution of higher
education, including a community or junior college, college, or university.
(1) .Y Seminude. "Seminude" means a state of dress in which clothing covers no more than
the genitals, pubic region, buttocks, areola of the female breast, as well as portions of the body
covered by supporting straps or devices.
(m) Sex Oriented Bookstore. "Sex Oriented bookstore"means an establishment having
as a regular and substantial portion of its stock for display or distribution in trade, books,
magazines or other periodicals which are distinguished or characterized 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.
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(n) Sex Oriented Business. "Sex Oriented Business"means any business establishment
or concern which as a regular and substantial course of conduct performs or operates as a Sex
Oriented Bookstore, Sex Oriented Theater, Sex Oriented Motion Picture Arcade, Sex Oriented
Cabaret, Sex Oriented Motel/Hotel, or sells, displays or distributes Sex Oriented Merchandise or
Sex Oriented Material, 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 Specified Anatomical Parts but not including those uses
or activities, the regulation of which is preempted by state law. "Sex Oriented Business" shall
also include any establishment which as a regular and substantial course of conduct provides or
allows performers, 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 Sex Oriented Business where one or more of the
following conditions exist:
(i)The area(s) devoted to the display of Sex Oriented Merchandise and/or Sex Oriented
Material exceeds fifteen(15) percent of the total display area of the business; or
(ii)The business or concern presents any type of live entertainment characterized by an
emphasis on Specified SexualActivity 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
(iii)At least fifty percent(50%) 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 Activities or
Specified Anatomical Parts.
(o) Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel"means 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; and/or (ii) rents, leases,
or lets any room for less than a six hour period, or rents, leases or lets any single room more than
twice in a 24-hour period. See Sex Oriented Business for definition of"regular and substantial
course of conduct."
(p) Sex Oriented Material. "Sex Oriented Material"means any Sex Oriented
Merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture
film, video tape recording, or other visual representation, characterized by an emphasis on matter
depicting, describing, or relating to Specific Sexual Activities or Specified Anatomical Parts.
(q) Sex Oriented Merchandise. "Sex Oriented Merchandise"means Sex Oriented -
implements or paraphernalia, such as, but not limited to: dildos, auto sucks, Sex Oriented
vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices,
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simulated and/or battery operated vaginas, and similar Sex Oriented devices which are designed
or marketed primarily for the stimulation of human genital organs or sadomasochistic activity.
(r) Sex Oriented mini-motion picture theater. "Sex Oriented minimotion picture theater"
means an enclosed building with a capacity for less than fifty persons used for presenting
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.
(s) Sex Oriented motion picture arcade. "Sex Oriented motion picture arcade"means 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 devices are maintained to show is images to five or fewer persons per machine
at any one time, and where the images so displayed are distinguished or characterized by an
emphasis on depicting or describing specified sexual activities or specified anatomical areas.
(t) Sex Oriented motion picture theater. "Sex Oriented motion picture theater"means an
enclosed building with a capacity of fifty or more persons, used for presenting material
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.
(u) Specified sexual activities. "Specified sexual activities" shall include any of the
following:
(1) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal
copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation 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, cunnilingus, fellatio, necrophilia, pederasty,pedophilia,piquerism,
sapphism,urophilia, zooerasty, zoophilia.
(2) Clearly depicted human genitals in a state of sexual stimulation, arousal or
tumescence;
(3) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or
masturbation; or
(4) Fondling, erotic or sexually touching of human genitals,pubic region, buttocks,
cleft of the buttocks, female breast; or anal region.
(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.
(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.
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(v) Specified anatomical areas. "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.
(3) Any device, costume, or covering that simulates any of the body parts included in
subdivisions (1) and (2) above.
5.70.15 Statements and Records.. Person(s) required to obtain a Sex Oriented Business
Permit pursuant to the provisions 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 Section 5.70.010 of this Code, shall maintain complete records
which can be segregated with regard to all transactions involving such pro ducts,imerchandise,
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.
No person required to keep records under this section shall refuse to allow authorized
representatives of the City Treasurer or his/her designee to examine said records at reasonable
times and places.
This section 5.70.15 shall not be applicable to a business establishment(i) for which such
transactions constitute less than fifteen percent(15%) of the gross receipts of the business, or (ii)
for which the Owner has an application pending for, or has obtained, a Sex Oriented Business
Permit, or(iii) for which the Owner has filed a sworn statement with the City giving the name
and address of the Owner's business and stating, under penalty of perjury, that the business is
being run as a Sex Oriented Business within the meaning of this Code.
5.70.020 Permit required. It shall be unlawful for any person, association, partnership
or corporation to own, operate, engage in, conduct or carry on, in or upon any premises within
the City of Huntington Beach any "Sex Oriented Business", defined in this chapter, without a
Sex Oriented Business License and a business license from the City of Huntington Beach.
(a) Any person, association, partnership or corporation to obtain a permit to own, operate,
engage in, conduct or carry on any Sex Oriented Business shall make application to the Chief of
Police, or his designated representative. Prior to submitting such application, a non-refundable _
fee, established by resolution of the City Council, shall be paid to the City Clerk to defray, in
park, the cost of investigation and report required by this chapter. The City Clerk shall issue a
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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 engaging in, operation of, conducting
of, or carrying on of any Sex Oriented Business.
(c) Only the owner of the Sex Oriented Business is eligible to obtain a Sex Oriented Business
Permit.
(d) The Permittee shall post the Permit conspicuously in the Sex Oriented Business premises.
5.70.030. Application for Sex Oriented Business Permit. Each application for an Sex
Oriented Business permit shall contain the following information:
(a) Applicant Information
(1) The full, true name and any other names, including aliases, used by the applicant.
(2) The present address and telephone number of the applicant.
(3) 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.
(4) Acceptable written proof that the Applicant is at least eighteen(18) years of age.
(5) The applicant's height, weight, color of eyes and hair, and date and place of birth.
(6) Two photographs of the applicant a least 2" x 2" taken within the last six months.
(7) Business, occupation or employment history of the applicant for the five (5) years
immediately preceding.the date of application.
(8) If the applicant intends to operate the Sex Oriented Business under a name other
than that of the applicant the applicant shall file the fictitious name of the Sex Oriented Business
and show proof of registration of the fictitious name.
(9) 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 a Sex Oriented Business or similar type of business revoked or suspended, the
reason therefore and the business activity or occupation subsequent to such action of suspension
or revocation.
(10) All convictions of the applicant within the last five years of any of the offenses set
forth in Sections 315, 316, 266a, 266b, 266e, 266g, 266h, 266i, 647(a), 647(b) and 647(d) of the
California Penal Code as those sections now appear or may hereafter be amended or renumbered.
(11) 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 Sex Oriented Business
Permit.
(12) The Chief of Police shall require the applicant to furnish fingerprints.
(13) 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, evidence that the corporation is in -
good standing under the laws of the State of California,the name of the registered corporate
agent and the address of the registered office for service of process, together with the place and
date of incorporation, and the names and addresses of each of its current officers and directors,
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and each stockholder holding more than 5 percent of the stock in the corporation. If the applicant
is a partnership, the applicant shall set forth the name, residence address and dates of birth of the
partners, including limited partners, and attached a copy of the partnership agreement. If the
applicant is a limited partnership, it shall furnish a copy of its certificate of limited partnership
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.
(b) Business Information
(1) 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.
(2) A description of the type of Sex Oriented Business for which the Permit is
requested and the proposed address where the Sex Oriented Business will operate, plus the
names and addresses of the owners and lessors of the Sex Oriented Business site.
(3) The address to which notice of action on the application is to be mailed.
(4) The names of all employees, independent contractors, and other persons who will
perform at the Sex Oriented Business,who are required by this Chapter to obtain an Sex
Oriented Business Performer License.
(5) A sketch or diagram showing the interior configuration of the premises, including
a statement of the total floor area occupied by the Sex Oriented Business. The sketch or diagram
need not be professionally prepared, but must be drawn to a designated scale or drawn with
marked dimensions of the interior of the premises to an accuracy of plus or minus six(6) inches.
(6) A certificate and straight-line drawing prepared within thirty (30) days prior to
application depicting the building, the primary entrance, and the portion thereof to be occupied
by the Sex Oriented Business, and: (1) the property line of any other Sex Oriented Business
within of the primary entrance of the Sex Oriented Business for which a Permit is requested; and
(2)the property lines of any church, school, residential zone or use within of the primary
entrance of the Sex Oriented Business.
5.70.035. Sex Oriented.Business Permit Application Investigation.
(a) -z Upon receipt of a completed application as set forth in Section 5.70.030 and payment of
the application and Permit fees, the Chief of Police shall immediately stamp the application as
received and promptly investigate the information contained in the application to determine
whether the applicant shall be issued an Sex Oriented Business Permit.
(b) Within forty-five (45) days of receipt of the completed application, the Police Chief shall
complete the investigation, submit a written report to the Hearing Officer pursuant to this
Chapter recommending the permit be granted or denied and setting forth the factual basis of the
recommendation.
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(c) The Chief of Police shall recommend the Hearing Officer grant the application and issue
the Sex Oriented Business Permit if he finds:
(1) The required fee has been paid.
(2) Application conforms in all respects to the provisions of this chapter.
(3) The applicant has not knowingly made a material misrepresentation or fraudulent,
false, or misleading statements in the application.
(4) The applicant, if an individual, or any of the stockholders 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 involving conduct which requires registration under California Penal
Code section 290, or of conduct violating Penal Code sections 314, 315, 316, 318, 647(a), 647(b)
and 647(h), or convicted of an attempt to commit any of the abovementioned 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.
(5) Applicant has not had an Sex Oriented 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.
(6) The building, structure, equipment or location of such business, as proposed by
applicant, would comply with all applicable laws, including but not limited to, health, zoning,
fire and safety requirements and standards.
(7) The applicant is at least eighteen years of age.
(8) That the applicant, his or her employee, agent, partner, director, officer,
stockholder or manager has not within two (2)}rears of the date of the application knowingly
allowed or permitted any act of sexual intercourse, sodomy, oral copulation, or masturbation to
be committed or allowed in or upon the premises where such Sex Oriented 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.
(9) That on the date that the business for which a permit is required herein
commences, and thereafter,there will be a responsible person on the premises to act as manager
at all times during which the business is open.
(d) If the Chief of Police fails to present a recomendation to the hearing officer within forty-five
(45)days after receipt of the completed application,the applicant may begin operating the Sex
Oriented Business for which the Permit was sought, subject to strict compliance with all other
provisions of this Chapter.
5.70,040 Sex Oriented Business Performer Permit
(a) No person shall engage in or participate in any live performance depicting specified
anatomical areas or involving specified sexual activities in an Sex Oriented Business, without a
valid Sex Oriented Business Performer Permit issued by the City. All persons who have been
issued an Sex Oriented Business Permit shall promptly supplement the information provided as
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part of the application for the Permit required by Section 5.70.35, with the names of all
Performers required to obtain an Sex Oriented Business Performer Permit, within thirty(30) days
of any change in the information originally submitted. Failure to submit such changes shall be
grounds for suspension of the Sex Oriented Business Regulatory Permit.
(b) The Police Chief shall grant, deny and renew Sex Oriented Business Performer Permits.
(c) The application for a Permit shall be made on a form provided by the Police Chief. An
original and two copies of the completed and sworn permit application shall be filed with the
Police Chief.
(d) The completed application shall contain the following information and be accompanied by
the following documents:
(1) The applicant's legal name and any other names (including "stage names" and aliases)
used by the applicant;
(2) Age, date and place of birth;
(3) Height, weight, hair and eye color;
(4) Present residence address and telephone number;
(5) Whether the applicant has ever been convicted of-
(i) Any of the offenses set forth in Sections 315, 316, 266a, 266b, 266c, 266e,
266g, 266h, 266i, 647(a), 647(b) and 647(D) of the California Penal Code as those
sections now exist or may hereafter be amended or renumbered.
(ii) The equivalent of the aforesaid offenses outside the State of California.
(6) Whether such person is or has ever been licensed or registered as a prostitute, or
otherwise authorized by the laws of any other jurisdiction to engage in prostitution in such other
jurisdiction. If any person mentioned in this subsection has ever been licensed or registered as a
prostitute, or otherwise authorized by the laws of any other state to engage in prostitution, a
statement shall be submitted giving the place of such registration, licensing or legal
authorization, and the inclusive dates during which such person was so licensed, registered, or
authorized to engage in prostitution.
(7) State driver's license or identification number;
(8) Satisfactory written proof that the applicant is at least eighteen(18) years of age;
(9) The applicant's fingerprints on a form provided by the Police Department, and a color
photograph clearly showing the applicant's face. Any fees for the photographs and fingerprints
shall be paid by the applicant;
(10) If the application is made for the purpose of renewing a License, the applicant shall
attach a copy of the License to be renewed.
(e) The completed application shall be accompanied by a non-refundable application fee. The
amount of the fee shall be set by resolution of the City Council.
(f)Upon receipt of an application and payment of the application fees, the Police Chief shall
immediately stamp the application as received and promptly investigate the application. -
(g) If the Chief of Police determines that the applicant has completed the application improperly,
the Chief of Police shall promptly notify the applicant of such fact and grant the applicant an
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extension of time of not more than ten (10) days to complete the application properly. In
addition, the applicant may request an extension, not to exceed ten(10) days, of the time for the
Chief of Police to act on the application, The time period for granting or denying a Permit shall
be stayed during the period in which the applicant is granted an extension of time.
5.70.045 Sex Oriented Business Performers Permit Application Investigation.
(a) Within five (5) days after receipt of the properly completed application,the Police Chief shall
grant or deny the application and so notify the applicant as follows:
(1) The Police Chief shall write or stamp "Granted" or"Denied" on the application and
date and sign such notation.
(2) If the application is denied,the Police Chief shall attach to the application a statement
of the reasons for denial.
(3) If the application is granted,the Police Chief shall attach to the application an Sex
Oriented Business Employee Permit.
(4) The application as granted or denied and the Permit, if any, shall be placed in the
United States mail, first class postage prepaid, addressed to the applicant at the residence address
stated in the application.
(b) The Police Chief shall grant the application and issue the Permit unless the application is
denied for one or more of the reasons set forth below:
(1) The applicant has knowingly made any false, misleading, or fraudulent statement of a
material fact in the application for a Permit or in any report or document required to be filed with
the application;
(2) The applicant is under eighteen (18) years of age;
(3) The Sex Oriented Business Employee Permit is to be used for performing in a
business prohibited by State or City law.
(4) The applicant has been registered in any state as a prostitute.
(5) The applicant has been convicted of any of the offenses enumerated in Section
5.70.110 or convicted of an offense outside the State of California that would have constituted
any of the described offenses if committed within the State of California. A Permit may be issued
to any person convicted of the described crimes if the conviction occurred more than five (5)
years prior to the date of the application.
(c) If the Police Chief grants the application or if the Police Chief neither grants nor denies the
application within five (5) days after it is stamped as received,the applicant may begin
performing in the capacity for which the License was sought.
5.70.050 Applicant to appear. The applicant for a Sex Oriented Business Permit or a Sex
Oriented Business Performers Permit shall personally appear at the Police Department of the
City of Huntington Beach and produce proof that a non-refundable application fee, established by resolution of the City Council, has been paid and shall present the application containing the
aforementioned and described information.
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i
.........
5.70.055 Public Hearing,
(a) Within five (5)business days following the receipt of an application pursuant to this Chapter,
the Chief of Police shall determine whether said application contains all information required by
the provisions of this chapter. If it is determined that said application is not complete,the Owner
shall be notified in writing within said five (5) day period that such application is not complete
and the reasons therefor, including any additional information necessary to render the application
complete. The Owner shall be permitted to submit an amended application or provide all
necessary information to render the application complete. Within five (5)business days
following the receipt of any such amended application or supplemental information,the Chief of
Police shall again determine whether said application is complete in accordance with the
procedures set forth in this subsection. Upon a determination that said application is complete,
either upon its initial submittal or upon receipt of any amended application or supplemental
information, the Owner shall be notified in writing by the Chief of Police that the application is
complete. All notices required by this subsection 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 Owner. Upon determination that the application is complete,the Chief of Police shall
immediately transmit such completed application to the Director of Community Development
and the City Administrator. The City Administrator shall appoint a hearing officer, who may,
but need not necessarily be, a City officer or employee, and shall transmit such completed
application to the hearing officer for processing in accordance with this section.
(b) The hearing officer shall conduct a public hearing upon said completed application. Notice
of said public hearing shall be given in the manner provided for conditional use permits as set
forth in the Huntington Beach Zoning and Subdivision Ordinance Code except that said public
hearing shall be held within fifty (50) calendar days following the date said application was
deemed complete, unless the Owner, or the Owner's authorized representative, expressly agrees
in writing to an extension of such period of time. Said public hearing shall be completed by the
hearing officer on the same date on which it is scheduled and held unless continuance of said
public hearing is expressly approved in writing by the Owner, or the Owner's authorized
representative, at or prior to the scheduled date of said public hearing.
(c) Within ten (10) calendar days following the completion of the public hearing, the hearing
officer shall approve such application if it is determined that both the Director of Community
Services and Chief of Police recommend granting of the Sex-Oriented Business Permit;
otherwise the application shall be denied. The hearing officer shall impose conditions upon such
approval as are reasonably necessary to assure compliance with the requirements of this chapter.
In the event of denial of the application, the hearing officer shall specify in writing the grounds
upon which the application is denied. Notice of the decision of the hearing officer shall be given
in writing to the Owner, and to any other person or entity expressly requesting notice thereof, in the same manner as provided for the giving of notices in this section. The decision of the hearing
officer shall also be immediately transmitted to the Chief of Police. The decision of the hearing
officer shall be deemed final notwithstanding any other provision of this Code to the contrary.
IS
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(d) Immediately upon receipt of a decision by the hearing officer approving or conditionally
approving such application, the Chief of Police shall issue the Sex-Oriented Business Permit to
the Owner. Such Permit shall be deemed subject to any conditions of approval imposed by the
hearing officer.
(e) The public hearing by the hearing officer specified in this subsection 5.70.055 shall be
required for any permit renewal pursuant to Section 5.70.070 of this Chapter.
5.70,060 Sex Oriented Business Permit Refusal Appeal. If the Chief of Police or the
Director of Community Development following investigation of the applicant, deems that the
applicant does not fulfill the requirements as set forth in this chapter, he or she shall notify the
City Administrator of such recommendation 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.
5.70.065 Investigation and Application by the Director of Community Development
(a) Upon receipt of a completed application by the Director of Community Development, the
Director of Community Development shall promptly investigate the information contained in the
application to determine whether the applicant shall be issued an Sex Oriented Business Permit.
(b) Within forty-five (45) days of receipt of the completed application,the Director of
Community Development shall complete the investigation and submit a written report to the
Hearing Officer pursuant to this Chapter recommending the permit be granted or denied and
setting forth the factual basis of the recommendation.
(c) The Director of Community Development shall recommend the Hearing Officer grant the
application and issue the Sex Oriented Business Permit if she finds:
(1) Application conforms in all respects to the provisions of this chapter.
(2) The building, structure, equipment or location of such business, as proposed by
applicant, would comply with all applicable laws, including but not limited to, health, zoning,
fire and safety requirements and standards.
(3) That the proposed business meets the locational criteria of the Huntington Beach
Zoning and Subdivision Ordinance Code; and that the applicant has met all of the development
and performance standards and requirements,unless the application is denied for one or more of
the reasons.
(d) If the Director of Community Development fails to present a written recommendation to the
Hearing Officer within forty-five (45) days of receipt of the completed application, the applicant
I
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may begin operating the Sex Oriented Business for which the Permit was sought, subject to strict
compliance with all other provisions of this Chapter.
5.70.070 Permit renewal. Each Sex Oriented Business Permit and Sex Oriented
Business Performers Permit shall expire one (1)year from the date of issuance. A written request
for permit renewal must be filed with the Police Chief, accompanied by the Annual Permit Fee, a
copy of the Permit to be renewed, and the applicable Sex Oriented Business Permit or Sex
Oriented Business Performers Permit, completed in full detail with current information. The
request for renewal shall be made at least thirty (30) days before the expiration date of the
Permit. When made less than thirty(30) days before the expiration date,the expiration of the
Permit will not be stayed.
If the application conforms to the previously approved application and the Sex Oriented Business
has not changed, the permit shall be renewed by the Chief of Police for another year.Notice of
such renewal, or denial, shall be given, in writing,to the permittee within twenty (20) 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 Sex Oriented Business will require a new
application to be processed in the same manner as the original applications. The renewal fee for
shall be established by resolution of the City Council. Applications for renewal shall be acted on
as provided herein for action upon applications for Permits.
5.70.080 Permits nontransferable. No Sex Oriented Business permit may be sold,
transferred or assigned by a permittee, or by operation of law, to any other person or persons.
Any such sale, transfer or assignment, or attempted sale, transfer or assignment, shall be deemed
to constitute a voluntary surrender 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
otherwise,the interest of the deceased partner or partners without effecting 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 partner. An Sex Oriented Business permit issued to a
corporation shall be deemed terminated and void when either any outstanding stock of the
corporation 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.
Any change in the nature or composition of the Sex Oriented Business from one type of Sex
Oriented Business use to another type of Sex Oriented Business use shall also render the Permit
null and void.
5.70.090 Sex Oriented businesses-Change of location or name.
(a) No Sex Oriented 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 deposited with the
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city, and approval has been obtained from the Chief of Police. Such approval shall not be given
unless all requirements and regulations, as contained in the city's codes, have been met.
(b) No permittee shall operate, conduct, manage, engage in, or carry on an Sex Oriented
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 Sex Oriented Business is located shall require inspection and shall comply with the
provisions and regulations of this Chapter.
5.70.100 Sex Oriented Business Standards of Operation.
(a) Except as specifically provided in this Chapter, the Sex Oriented Business shall comply
with the zoning, parking, development and design standards applicable to the zone in which the
business is located.
(1) The Sex Oriented Business shall be conducted wholly within a building and shall
not be located, in whole or in part, within any portable structure.
(2) All indoor areas of the Sex Oriented Business within which patrons are permitted,
except restrooms, shall be open to view at all times.
(3) Signage shall conform to the standards of the Huntington Beach Zoning and
Subdivision Ordinance Code except that such signs (i) shall contain no sign copy other than the
business name and the street address, and the notice required on the entrance door to the
premises, (ii) shall contain no flashing lights, (iii) shall contain no photographs, silhouettes,
drawings, statues, monuments, sign shapes or sign projections, or other graphic representations,
which depict the human body or anatomy, or any portion thereof, whether clothed or unclothed,
including without limitation representations that depict "Specified Anatomical Parts" or
"Specified Sexual Activities", (iv) shall not be located within 100 feet of any freeway or any
street designated as an arterial highway on the Circulation Element of the City of Huntington
Beach General Plan, and (v) shall not be located or oriented in a manner whereby the sign copy is
visible by any person traveling in a vehicle upon any freeway or any street designated as an
arterial highway on the Circulation Element of the City of Huntington Beach General Plan.No
banners or other temporary signs shall be placed anywhere upon or within the premises in such
manner as to be visible from any location other than within the premises occupied by the Sex
Oriented Business.
(b) General Provisions
(1) No Sex Oriented Material or Sex Oriented Merchandise shall be displayed in such
manner as to be visible from any location other than within the premises occupied by the Sex
Oriented Business.
(2) No person under the age of 18 years shall be permitted within the premises at any time.
(3) The Sex Oriented Business shall not operate or be open between the hours of 2:00
a.m. and 9:00 a.m.
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(4) The Sex Oriented 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 facilities. The restrooms shall be free from all Sex
Oriented Materials and Sex Oriented Merchandise. Restrooms 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 Sex Oriented Business which
deals exclusively with sale or rental of merchandise which is not used or consumed on the
premises, such as a Sex Oriented Bookstore, and which does not provide restroom facilities to its
patrons or the general public.
(5) The Sex Oriented Business shall not conduct any massage, acupuncture, figure
modeling,tattooing, acupressure or escort services and shall not allow such activities on the
premises.
(c) Any Sex Oriented Business which allows customers 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 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. The security guard(s) shall be
charged with preventing violations of law and enforcing compliance by patrons with the
requirements of this Chapter. Any security guard required by this subparagraph shall be
uniformed in such manner so as to be readily identifiable as a security guard by the public. 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 hereunder .
(2) Landscaping shall conform to the standards established for the zone, except that,
if the Sex Oriented Business is the sole use on a lot, no planting shall exceed 30 inches in height,
except trees with foliage not less than six(6) feet above the ground .
(3) The entire exterior grounds, including the parking lot, shall be lighted sufficiently
to permit the security personnel to observe activity on the grounds and within automobiles.
(4) The premises within which the Sex Oriented Business is located shall provide
sufficient sound absorbing insulation so that noise generated inside said premises shall not be
audible anywhere on any adjacent property or public right of way or within any other building or
other separate unit within the same building.
(5) 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.
(6) 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.
(d) The following additional regulations shall pertain to Sex Oriented Motion Picture
Arcades which provide more than one viewing Area:
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(1) Upon application for a Sex Oriented 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. A manager's station may not
exceed thirty two (32) square feet of floor area with no dimension greater than eight feet. The
diagram shall also designate the place at which the Sex Oriented Business Permit and city
business license will be conspicuously posted. A professionally prepared diagram in the nature of
an engineer's or architect's blueprint shall not be required; however, each diagram shall be
oriented too 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 Chief of Police
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) The application shall be sworn to be true and correct by the Owner under penalty
of perjury.
(3) No alteration in the configuration or location of a manager's station(s) may be
made without the prior approval of the Chief of Police.
(4) It is the duty of the Owner(s)to insure that at least one (1) employee is on duty
and situated at each manager's station at all times that any patron is present inside the premises.
(5) The interior of the premises shall be configured in such a manner that there is an
unobstructed view from a manager's station of every area of the premises to which any patron is
permitted access for any purpose excluding restrooms. If the premises has two or more manager's
stations designated,then the interior of the premises shall be configured in such a manner that
there is an unobstructed view of each area of the premises to which any patron is permitted
access for any purpose, excluding restrooms, from at least one of the manager's stations. The
view required in this subsection must be by direct line of sight from the manager's station.
(6) 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 view area specified above remains unobstructed by any
doors, walls,persons, merchandise, display racks or other materials at all times and to insure that
no patron is permitted access to any area of the premises which has been designated as an area in
which patrons will not be permitted in the application filed pursuant to this subsection.
(7) No Individual viewing Area may be occupied by more than one person at any one
time. "Individual viewing Area" shall mean a viewing area designed for occupancy by one
person. Individual viewing Areas of the Sex Oriented 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 of two or more Individual viewing Areas.
(8) 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 ten(10) foot candle as measured at the floor level . -
(9) 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.
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(e ) The following additional requirements shall pertain to Sex Oriented Businesses providing
live entertainment revealing or depicting Specified Anatomical Parts or involving Specified
Sexual Activities:
(1) No person shall perform, and no owner, operator, or manager of a Sex Oriented
Business shall permit, live entertainment revealing or depicting Specified Anatomical Parts for
patrons of a Sex Oriented Business except where:
(a) performed upon a stage located at least eighteen (18) inches above the
level of the floor; and
(b) a distance of at least six (6) feet, measured horizontally, is maintained between
the nearest area occupied by patrons and the portion of the stage occupied by an entertainer, at all
times during which such entertainer is revealing or depicting Specified Anatomical Parts.
(2) The Sex Oriented Business shall provide separate dressing room facilities for
entertainers which are exclusively dedicated to the entertainers' use.
(3) The Sex Oriented Business shall provide an entrance/exit to the premises for
entertainers which is separate from the entrance/exit used by patrons.
(4) No entertainer shall have physical contact with any patron, and no patron shall
have physical contact with any entertainer, while on the premises which physical contact
involves the touching of the clothed or unclothed genitals, pubic area,buttocks, cleft of the
buttocks, perineum, anal region, or female breast with any part or area of such other person's
body.
(5) Fixed rail(s) at least thirty(30) inches in height shall be maintained establishing
the separations between entertainers and patrons required by this Section.
5.70.110 Enforcement and Revocation.
(a) The permit holder shall allow officers of the City of Huntington Beach and their
authorized representatives to conduct reasonable unscheduled inspections of the premises of the
Sex Oriented Business for the purpose of ensuring compliance with the law at any time the Sex
Oriented Business is open for business or is occupied; provided, whenever any city official relies
upon this section to gain access to the permit holder's establishment without paying any
otherwise applicable admission fee or cover charge, any person employed by the permit holder to
collect such admission fees or cover charges,may require such official,before admitting such
official to the establishment, to produce identification indicating the official's name, branch of
city government by which such official is employed, and the job title such official holds within
that branch of city government.
(b) The Chief of Police shall revoke a Sex Oriented Business Permit when:
(1) Any of the applicable requirements contained in Section 5.70.100 ceases to be
satisfied;
(2) The application is discovered to contain incorrect, false or misleading
information;
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(3) The permit holder is convicted of a felony or misdemeanor occurring upon, or
relating to the premises or lot upon which the Sex Oriented Business is located which offense is
classified by the state as an offense involving 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 any crime requiring registration under
California Penal Code Section 290, or any violation of Penal Code Sections 243.4, 261, 261.5,
264.1, 266, 266a through 266k, inclusive, 267, 286, 286.5, 288, 288a, 311 through 311.10,
inclusive, 314, 315, 316 or 647;
(4) 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 in
subsection .0203 above as a result of such person' s activity on the premises or property on which
the Sex Oriented Business is located, and the person or persons were employees, contractors or
agents of the Sex Oriented Business at the time the offenses were committed;
(5) If the permit holder or an employee has knowingly allowed prostitution, or
solicitation for prostitution, on the premises; or
(6) The Sex Oriented Business has been operated in violation of any of the
requirements of this Chapter and, (i) if the violation is of a continuous nature,the Business
continues to be operated in violation of such provision for more than ten(10) days following the
date written notice of such violation is mailed or delivered to the Owner, or(ii) if the violation is
of a noncontinuous nature,two (2) or more additional violations of the same provision, or four
(4) or more violations of any other of the provisions, of this Chapter occur (regardless of whether
notice of each individual violation is given to Owner) within any twelve (12) month period .
(c) Upon determining that grounds for permit revocation exist, Chief of Police shall furnish
written notice of the proposed revocation to the permit holder. Such notice shall summarize the
principal reasons for the proposed revocation; shall state that the permit holder may request a
hearing within fifteen(15) calendar days of the postmarked date on the notice; and shall be
delivered both by posting the notice at the location of the Sex Oriented Business and by sending
the notice by certified mail, postage prepaid, addressed to the Permit holder as that name and
address appear on the Permit. Within fifteen(15) calendar days after the later of the mailing or
posting of the notice, the Permit holder may file a request for hearing with the City
Administrator. If the request for a hearing is filed within fifteen(15) calendar days of the mailing
or posting of the notice referred to herein, the Chief of Police shall transmit the request to the
City Administrator, and the hearing shall be provided as set forth in this Section.
(d) Upon receipt of a written request for a hearing,the City Administrator his or her designee
shall appoint a hearing officer("Hearing Officer") to conduct a hearing. The Hearing Officer
shall conduct a hearing within forty-five (45) calendar days of the filing of such request by the
permit holder. Notice of time and place of the hearing shall be given to the permit holder by
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personal service or via certified mail, postage prepaid, at least fifteen(15) calendar days in
advance of the date set for the public hearing. At the hearing,the permit holder and the city
shall be entitled to present relevant evidence, testify under oath and call witnesses who shall
testify under oath. The Hearing Officer shall not be bound by the statutory rules of evidence in
the hearing, except that hearsay evidence may not be the sole basis for the determination of the
Hearing Officer.
(e) Within ten(10) calendar days after the hearing, the Hearing Officer shall decide whether
the grounds for revocation exist and shall submit a written report to the Chief of Police. Such
written report shall contain a brief summary of the evidence considered and shall state findings,
conclusions and directives to the Chief of Police regarding whether the permit is to be revoked.
All such reports shall be filed with the City Clerk and shall be public records. A copy of such
report shall be forwarded by certified mail, postage prepaid,to the permit holder on the day
it is filed with the City Clerk. If the Hearing Officer determines that any grounds for revocation
exist, as provided in this Chapter, the Chief of Police,based upon the report of the Hearing
Officer or, if no hearing was requested by the permit holder, based upon the report of the city
staff, shall immediately revoke the Sex Oriented Business Permit. The Decision of the Hearing
Officer shall be appealable to the City Council by the filing of a written appeal with the City
Clerk within fifteen(15) calendar days following the date of mailing of such decision. A timely
filed appeal shall vacate the decision of the Hearing Officer. Any such appeal ,shall be a de novo
public hearing held in the manner and within the time limitations set forth in subsections (c)
through(d) of this Section. The decision of the City Council upon appeal, or the decision of the
Chief of Police in the absence of a timely appeal, shall be final and conclusive.
(e) No application for a Sex Oriented Business Permit shall be accepted or processed for any
person, corporation, partnership or member thereof, or any other entity for which a Sex Oriented
Business Permit has been revoked within the preceding three (3) year period.
5.70.120 Existing Nonconforming Uses.
(a) Any Sex Oriented Business lawfully existing on October 21, 1996, which becomes a
nonconforming use by reason of the adoption of this Chapter shall cease operation, or otherwise
be brought into full compliance with the provisions this Chapter,not later than October 21, 1998
or upon six months written notice whichever is later, unless sooner terminated for any reason or
voluntarily discontinued for a period of sixty (60) consecutive calendar days or more, or unless
an additional extension of said amortization period is granted upon application therefor filed
pursuant to this Section. No nonconforming use shall be increased, enlarged, extended or altered
except that the use, or any portion thereof, may be changed to a conforming use.
(b) Any Sex Oriented Business which becomes a nonconforming use by reason of the -
adoption of this Chapter shall be notified in writing of its nonconforming status by the Chief of
Police by certified mail or personal service. Such notice shall be given within six (6) months
following the effective date of this Chapter or, upon any later discovery by the city of the
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existence of a nonconforming Sex Oriented Business, within a reasonable time thereafter. Such
notice shall be given to the property owner of record upon which such business is located, the
Owner of the business, and the holder of the business license for such business (to the extent
such parties are different and are identifiable and accessible). Such notice shall also identify the
applicable amortization period as provided in this Section, and include a copy of this Section
describing the process for requesting an extension of such amortization period. Failure of any
person to actually receive such notice shall not effect the validity of any proceedings pursuant to
this Section.
(c) Any application for an extension of the amortization period set forth in this Section must
be filed by either the owner of the property upon which the business is located, the Owner of the
business, or the holder of the business license for the business, not later than either(i) October
21, 1998, or(ii)within sixty calendar days following the date of receipt of the notice from the
Chief of Police specified above,whichever date is later. Such application shall be made in
writing to the Chief of Police, shall include all of the information required by subsection
below, and shall be accompanied by the required application fee as established by ordinance or
resolution of the City Council. The amortization period specified by this Section shall be final
and conclusive for all purposes in the absence of a timely filed extension application pursuant to
this subsection.
(d) Not later than thirty (30) calendar days after submittal of an application to extend the
amortization period, the Chief of Police shall notify the applicant, in writing, if the application is
not complete and specify the reasons therefor. A complete application shall include: (i) a written
request for an extension of the amortization period which specifies the additional length of time
requested for amortization of the existing use and the justification therefor, including but not
necessarily limited to information relevant to the criteria for such extension as listed in the
Section below, (ii)the signature of the applicant certifying under penalty of perjury that all of the
information upon or submitted with the application is true and correct to the best of his or her
information and belief, and (iii) the required application fee. If the application is not complete,
the Chief of Police shall specify in writing those portions which are incomplete and shall identify
the manner by which it can be made complete. If a written determination is not provided to the
applicant within thirty (30) calendar days after it is submitted,the application shall be deemed
complete. Upon receipt of notice that the application is incomplete, the applicant shall have thirty
(30) calendar days to submit a revised application or the required additional information. If the
applicant fails to submit a revised application or the additional information required by the notice
of insufficiency prior to the expiration of said thirty (30) day period,the application shall be
deemed withdrawn and the amortization period specified in the subsection above shall be final
and conclusive for all purposes. If the applicant submits a revised application or the additional
required information to the Chief of Police within said time period, the Chief of Police shall
again review the sufficiency of said application within the time and manner set forth in this -
subsection.
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(e) Within thirty (30) calendar days following the receipt of a completed application, Chief
of Police shall notify the City Administrator and transmit the application and file to the City
Manager, who shall appoint a hearing officer("Hearing Officer") within seven(7) calendar days
of such notice and transmittal. The Hearing Officer shall within twenty (20) calendar days
thereafter conduct a hearing upon such application. Notice of such hearing shall be given in
writing to the owner of the property upon which the business is located, the Owner of the
business, the holder of the business license for the business, and the Chief of Police. Such notice
shall be given by first class mail, postage prepaid, and shall be deposited in the course of
transmission with the United States Postal Service not less than ten (10) calendar days prior to
the date of the hearing. Such notice shall specify the date, time,place and subject matter of the
hearing.
(f) At the hearing, the Hearing Officer shall receive the evidence and testimony regarding the
criteria set forth in this subsection and shall determine whether the business has been provided a
reasonable amortization period commensurate with the investment involved. If the Hearing
Officer determines that the amortization period specified in subsection above is not
reasonable,the Hearing Officer shall prescribe a reasonable amortization period commensurate
with the investment in the business. The criteria to be used by the Hearing Officer in making
such determination shall be as follows:
(1) The Owner's financial investment in the business prior to the date of notice
pursuant to subsection above.
(2) The present actual and depreciated value of the business improvements.
(3) The applicable Internal Revenue Service depreciation schedules for such
improvements.
(4) The remaining useful life of the business improvements, if any.
(5) The extent to which the business fails to comply with all applicable
requirements of Chapter.
(6) The extent, if any,to which the business has been brought into compliance
with any of the applicable requirements of Chapter 5.70 since the date of adoption of this
amended Chapter 5.70 and with which such business previously failed to conform, including the
cost incurred for any such improvements.
(7) The remaining term of any lease or rental agreement under which the
business is operating.
(8) The date upon which the Owner first received notice of the nonconforming
status of the business.
(9) Whether the business can be brought into conformance with all applicable
requirements of Chapter without requiring to be relocated, and the cost of complying with such
requirements.
(10) Whether the business must be discontinued at the present location in order
to comply with the requirements of Chapter 5.70and, if such relocation is required: (i)the -
availability of relocation sites, and (ii)the cost of such relocation .
(11) The ability of the Owner to change the business to a conforming use.
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(g) Within fifteen(15) calendar days following the date of the hearing (or any extension of
such hearing as approved by the applicant), the Hearing Officer shall mail by first class mail,
postage prepaid, a written copy of his or her decision regarding such application to the owner of
the property upon which the business is located, the Owner of the business,the holder of the
business license, and to any other person who has theretofore made written request to the
Hearing Officer for notice of such decision. Said decision shall include written findings in
support'of his or her determination to grant or deny an extension of the amortization period.
Approval of any extension of the amortization period specified in this Section may be
conditioned upon phased compliance with certain requirements of this Chapter by various dates.
Failure to comply with any such conditions or requirements of the extension within the time
limit(s) specified in the extension decision shall be deemed an automatic expiration of the
amortization period without further notice, hearings or orders; provided, however, in no event
shall such amortization period expire prior to the date set forth in the subsection above. The
decision of the Hearing Officer shall be based upon the evidence presented at the hearing. The
decision of the Hearing Officer shall be deemed final and conclusive.
(h) No Sex Oriented Business which was rendered nonconforming by the adoption of this
Chapter shall continue to be operated in the city of Huntington Beach without complying with all
of the provisions of this Chapter otherwise applicable to such Sex Oriented Business following
expiration of the amortization period set forth in this Section or any extension thereof specifically
approved for such Sex Oriented Business.
5,70,130 Regulations Nonexclusive The provisions of this article regulating Sex
Oriented Businesses are not intended to be exclusive and compliance therewith shall not excuse
noncompliance with any other regulations pertaining to the operation of businesses as adopted by
the City Council of the City of Huntington Beach.
5.70.140 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
imprisonment in the county jail for a period not to exceed six (6) months, or by both such fine
and imprisonment.
5.70.150 Unlawful operation declared nuisance. Any Sex Oriented Business operated,
conducted or maintained contrary to the provisions of this chapter shall be and the same is hereby
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,proceeding 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 jurisdiction to
grant such relief as will abate or remove such Sex Oriented Business and restrain and enjoin any
person from operating, conducting or maintaining an Sex Oriented Business contrary to the
provisions of this chapter.
5.70.160 Minors and Intoxicated Persons.
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(a) It shall be a misdemeanor for any person under the age of eighteen (18)years or any
obviously intoxicated person to enter or remain on the premises of a Sex Oriented Business at
any time. A sign giving notice of this provision shall be prominently posted at each entrance to
the premises of the Sex Oriented Business.
1. Every person having responsibility for the operation of a Sex Oriented Business
who, with knowledge that a person is a minor, or who fails to exercise reasonable care in
ascertaining the true age of a minor, knowingly allows such minor to enter or remain on the
premises of the business is guilty of a misdemeanor.
2. Every person having responsibility for the operation of a Sex Oriented Business
who allows any obviously intoxicated person to enter or remain on the premises of the business
is guilty of a misdemeanor.
(b) For purposes of this section, the holder of a Sex Oriented Business 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. The term "minor" shall mean any person under
the age of eighteen(18) years.
5.70.170 Employment of Persons Without Permits Unlawful
It shall be unlawful for any owner, operator, manager, or permittee in charge of or in control of a
Sex Oriented Business which provides live entertainment depicting specified anatomical areas or
involving specified sexual activities to allow any person to perform such entertainment who is
not in possession of a valid, unrevoked Sex Oriented Business Performer Permit.
5.70.180 Severability. If any section, subsection, subdivision, paragraph, sentence, clause,
or phrase in this chapter or any part thereof is for any reason held to be unconstitutional or
invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the
validity or effectiveness of the remaining portions of this chapter or any part thereof. The City
Council hereby declares that it would have passed each Section, subsection, subdivision,
paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one (1) or more
subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared
unconstitutional, or invalid, or ineffective.
SECTION 4. AMENDING HUNTINGTON BEACH MUNICIPAL CODE CHAPTER 5.44.
Huntington Beach Municipal Code Chapter 5.44 is amended by adding Section 5.44.010(d)to
read as follows:
(d) The issuance of a Sex Oriented Business Permit pursuant to Chapter 5.70 of this Code is
applicable satisfies the entertainment requirement of this Chapter. A separate
entertainment permit is not required.
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SECTION 5. AMENDING HUNTINGTON BEACH ZONING AND SUBDIVISION
ORDINANCE CODE CHAPTER 211. Huntington Beach Zoning and Subdivision Ordinance
Code Chapter 211 is amended by amending the"Adult Business"Designation of the Schedule
Chapter 211.04 to read as follows:
Adult Businesses (excluding massage - P P (C)
establishments)
Adult Businesses (massage - PC PC (C)
establishments)
SECTION 6. The City Council declares that this emergency ordinance is required for the
immediate preservation of the public peace,health, or safety. Therefore, pursuant to Section 501
of the City Charter,this ordinance shall become effective immediately upon its affirmance by at
least five of the members of the City Council.
SECTION 7. This ordinance shall take effect immediately upon its adoption.
PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a
regular meeting held thereof on the 21st day of October , 1996.
ATTEST:
Mayor
City Clerk APPROVED AS TO FORM:
REVIEWED AND APPROVED ���
/b grity Attorney
City Administrator
i
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Emergency Ord. No- 3341
STATE OF CALIFORNIA
COUNTY OF ORANGE ss,
CITY OF HUNTINGTON BEACH )
I CONNIE BROCKWAY, 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 herby certify that the
foregoing ordinance was read to the City Council of the City
of Huntington Beach at a regular meeting thereof held on the
21st day of October 19_2 and was passed and adopted by
at least four-fifths (4/5) affirmative votes of said City Council .
AYES: Councilmembers:
H rman, Leipziu-,__i�ader 9131jivan , bettiQfi , Green, Garofalo
NOES: Councilmembers;
None
ABSENT: Councilmembers:
. . . . . . . . . . . . . . . . . . . . .
None
City Clerk and ex-officio Clerk
of the City Council of the-C-1 ty
of Huntington Beach, California