HomeMy WebLinkAboutOrdinance #3470 ORDINANCE NO. 3470
AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH
AMENDING CHAPTER 5.70 OF THE HUNTINGTON BEACH MUNICIPAL
CODE RELATING TO THE REGULATION OF SEX ORIENTED BUSINESSES
The City Council of the City of Huntington Beach does hereby ordain as follows:
SECTION 1. Findings. The following findings are hereby adopted in support of
Chapter 5.70 and the amendments thereto. The findings shall not be codified.
The City Council takes legislative notice of the following studies which the City Council
has a reasonable basis to believe are relevant to the experience of Huntington Beach, and which
show that Sex Oriented Businesses cause secondary effects which degrade the areas of the city in
which they are located [such as depreciation of property values and increase in vacancies in
residential and commercial areas], cause a blighting effect on the city [such as low level
maintenance of commercial premises and parking lots], interfere with residential property
owners' enjoyment of their property as a result of increases in crime, litter, noise and vandalism
when such property is located in the vicinity of the Sex Oriented Business and increase crime in
general, and sex and drug-related crimes in particular, in the vicinity of the sex-oriented
businesses: New York, New York, Department of City Planning(1994); Garden Grove,
California(1991); Tucson, Arizona(1990); Seattle, Washington, Department of Construction
and Land Use (1989); Austin, Texas, Office of Land Development Services (1986); Oklahoma
City, Oklahoma(1986); Indianapolis, Indiana, Department of Metropolitan Development (1984),
Houston, Texas, City Council Report (1983); Beaumont, Texas (1982); Minnesota Crime
Prevention Center, Inc., Minneapolis (1980); Phoenix, Arizona(1979); Los Angeles, California,
Department of City Planning (1977); Amarillo, Texas, Planning Department (1977); and
Cleveland, Ohio (1977); Newport News Virginia, (1996), the Times Square Study(1994). The
City reasonably believes that these studies are relevant to the problems addressed by the City in
enacting this Ordinance to reduce or eliminate the adverse secondary effects of sex-oriented
businesses.
Based on information provided by the City of Newport Beach, copies of the dockets of
cases on file in the Orange County Superior Court (Harbor) for convictions of Penal Code
section 647(b)(solicitation for prostitution), and attachments to the pleadings filed by the City of
Newport Beach in the case of Tily B. v City of Newport Beach (1999) 69 C.A. 4th 1, the City
Council finds and believes that dancers, models, entertainers, and other persons who perform in
the manner generally described in Chapter 5.70 of the Huntington Beach Municipal Code at Sex
Oriented Businesses, or who appear in a state of undress in such public businesses, have been
found to have engaged in sexual activity with patrons on the site of the businesses. Based on the
same evidence, nude performers in Newport Beach have engaged in acts of prostitution with
patrons of the establishments allowing nudity in public in that city.
OOord/570o-900/10/2/00 1
oi-c! {3 76
The City Council also takes notice of the experiences of the City of Anaheim, California,
with adult businesses in that City. The City of Anaheim has informed Huntington Beach about
these experiences, which demonstrate that sex oriented use businesses have extensive negative
secondary effects. The City of Anaheim has obtained criminal convictions of patrons of sex
oriented establishments for solicitation of acts of prostitution and violations of Anaheim's
Municipal Code relating to sexual touching between patrons and performers. These violations
typically involve nude or topless dancers who perform dances consisting of simulated sex acts or
making sexual contacts with patrons in exchange for a fee. In Anaheim, ten persons were found
to have been in violation of the anti-touching provisions of the Anaheim Municipal Code, these
violations occurring inside the establishment where the nude performances were given. These
cases arose out of nude dances. The City of Huntington Beach is aware of at least six male
patrons who have pled guilty to committing acts of prostitution within the establishments where
the nude performances were held.
In developing this Ordinance, the City Council was and is mindful of legal principles
relating to the regulation of sex-oriented businesses, and the City Council does not intend to
suppress or infringe upon any expressive activities protected by the First Amendment of the
United States and California Constitutions but instead desires to enact 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: City of Erie v. Pap's A.M.
("Kandyland), 120 S.Ct. 1382 (2000); Barnes v. Glenn Theater, 501 U.S. 560, 111 S.Ct. 2456,
115 L.Ed.2d 504 (1991); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 110 S.Ct, 596, 107 L.Ed.2d 603
(1990); City of Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986);
and Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976);
decisions of the United Stated Court of Appeals for the Ninth Circuit,including but not limited
to: Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied 511
U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City
of Kent, 163 F.3d 545 (9th Cir. 1998), cent. denied, 120 S.Ct. 1553, (2000); several California
cases, including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.AppAth I
(1998); City of National City v. Wiener, 3 Cal.4th 832 (1993), cent. denied 510 U.S. 824; People
v. Superior Court(Lucero) 49 Cal.3d 14 (1989); and City of Vallejo v. Adult Books, 167
Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); and other federal cases, including
but not limited to: Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995);Mitchell V.
Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993);Lakeland Lounge v. City of
Jacksonville, 973 F.2d 1255 (5th Cir. 1992);International Eateries v. Broward County, 941 F.2d
1157 (11th Cir. 1991), cent. denied 503 U.S. 920 (1992); and Star Satellite, Inc. v. City of Biloxi,
779 F.2d 1074 (5th Cir. 1986); and Nightclub Management v. City of Canon Falls, 2000 W.L.
432644 (D.Minn.). Based on the facts recited in these cases,the City Council has determined
that it has a reasonable basis to believe that Huntington Beach Municipal Code Section 5.70, as
amended, will ameliorate the secondary effects of the conduct described therein and that the
circumstances of these cases has relevance to the experience of Huntington Beach.
The City Council recognizes that the most recent U.S. Supreme Court decisions regarding
local regulation sex oriented businesses did not result in majority opinions. (City of Erie v. Pap's
A.M. ("Kandyland'), 120 S.Ct. 1382 (2000);Barnes v. Glenn Theater, 501 U.S. 560, 111 S.Ct,
OOord/570o-900/10/2/00 2
2456, 115 L.Ed.2d 504 (1991).) The City Council recognizes the legal principle that when a
fragmented Supreme Court decides a case and no single rationale enjoys the assent of five
justices, the holding of the Court is the position taken by those members of the Court who
concurred on the narrowest grounds. (Marks v. United States, 430 U.S. 188, 193 (1977); Tily B.
v. City of Newport Beach, 69 Cal.AppAth 1, 16 (1998).) Based on this principle, the City
Council takes legislative notice that the holding of the Court in Barnes is the opinion of Justice
Souter, and the holding of the Court in Kandyland is the opinion of Justice O'Connor.
The City Council recognizes the possible harmful effects of sex-oriented businesses and
recognizes the need to enact regulations which will minimize and/or eliminate such exposure.
The City Council further takes legislative notice of the cases that recognize that protection of
minors from sexually explicit materials is a compelling government interest, including Crawford
v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of
Santa Barbara, 40 Cal.App.4th 1075 (1995).
The City Council has also determined that locational criteria alone do not adequately
protect the health, safety, and general welfare of the citizens of the City of Huntington Beach and
that certain requirements with respect to Sex Oriented Businesses are in the public interest. In
addition to the findings in studies conducted in other cities regarding increases in crime rates and
blighting of areas in which such businesses are located, the City Council also relies upon and
takes legislative notice of the facts recited in the cases of Kev. Inc., v. Kitsap County, 793 F.2d
1053 (9th Cir. 1986), Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), and Tily B. v. City
of Newport Beach (1999) 69 Cal.AppAth 1, regarding how live sex-oriented entertainment
facilities and lack of distance between patrons and performers results in secondary effects such
as prostitution, drug dealing, and other law enforcement problems. The City Council has a
reasonable basis to believe that the circumstances which gave rise to those cases are relevant to
the situation as it exists in the City of Huntington Beach.
The City Council takes note of the proliferation of sex-oriented material on the Internet
and its availability as an alternative avenue of communication. The City Council also considers
and relies on published decisions examining the proliferation of communications on the Internet.
(Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)
[the principle channel through which many Americans now transmit and receive sexually explicit
communication is the Internet];Anheuser-Busch v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996),
cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First Amendment challenge to a
Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the
Internet is one available channel of communication]; U.S. v. Hockings, 129 F.3d 1069 (9th Cir.
1997); see also U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820
[recognizing the Internet as a medium for transmission of sexually explicit material in the
context of obscenity prosecutions].) The emergence of the Internet brings with it a virtually
unlimited additional source of sex-oriented sexual materials available to interested persons in
every community with a mere keystroke. A sex-oriented business no longer has to be "actually"
physically located in a city to be available in the community.
00ord/570o-900/10/2100 3
It is not the intent of the City Council in enacting this Ordinance or any provision thereof
to condone or legitimize the distribution of obscene material, and the City and its Council
recognize that State law prohibits the distribution of obscene materials and expect and encourage
law enforcement officials to enforce State obscenity statutes against such illegal activities in the
City of Huntington Beach.
The City Council does not intend to regulate in any area preempted by California law,
including but not limited to, regulation of obscene speech.
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.
The City Council has also determined that a closing hours requirement promotes the
reduction of deleterious secondary effects from sex-oriented facilities and reasonably relies on
prior court decisions on the need for closing hours including Mitchell v. Comm. on Adult
Entertainment, 10 F. 3d 123, 131-139 (3rd Cir. 1993);Lady J. Lingerie, Inc. v. City of
Jacksonville, 973 F. Supp. 1428 (M.D. Fla. 1997) and Lady J. Lingerie, Inc. v. City of
Jacksonville, 176 F. 3d 1358 (11" Cir. 1999); and City of Colorado Springs v. 2354Inc., 896
P.2d 272 (1995),
00ord/570o-900/10/2/00 4
SECTION 2. Section 5.70.010 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.70.010 Definitions.
(a) Cabaret. "Cabaret" means a nightclub, theater or other establishment which regularly
features live performances distinguished or characterized by an emphasis upon specified
sexual activities or specific anatomical areas.
(b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee.
(c) Distinguished or characterized by an emphasis upon. "Distinguished or characterized by
an emphasis upon" means 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, 115 Cal.App.3 151
(1981).
(d) Encounter Center. "Encounter center" or "rap studio" means any business, agency or
person who, for any form of compensation, consideration or gratuity, regularly 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.
(e) Entertainment."Entertainment" shall mean any human body activity in a Sex-Oriented
Business,whether performed alone or with other persons, including but not limited to
singing, speaking, dancing, acting, posing, modeling, simulating sexual activity,
wrestling,pantomiming, or the public display of specified anatomical areas for the
purpose of holding or gaining the attention of, diverting or amusing guests or patrons.
"Entertainment" shall be synonymous with "performance."
(f) Permit holder or Permittee. "Permit holder" or "Permittee" shall refer to the person or
entity to whom the permit is issued and shall include, but not be necessarily limited to the
following:
(1) the sole proprietor of a Sex Oriented Business;
(2) the partnership owning a Sex Oriented Business, and each of the
partners; or
(3) the corporation owning a Sex Oriented Business and each of its
officers and directors, but not individual shareholders. For purposes of
00ord/570o-900/10/2/00 5
i
this Chapter, "corporation" shall also include not-for-profit
corporations and limited liability corporations.
(g) O ep rator: The permitee or the owner(s); the manager(s), as identified by the permittee, as
identified by the manager him or herself or by the employees; or the person,who at any
given time, is primarily responsible for the operation of the business.
(h) Performer. 'Performer" means any person who dances, models, engages in entertainment,
and/or performs specified sexual activities or displays specified anatomical areas in a sex
oriented business. Performer shall include persons engaged in or providing entertainment
whether they are employees or independent contractors of a sex oriented business and
whether or not they entertain with or without compensation or other form of
consideration, and whether clothed or unclothed.
(i) Regularly Features. 'Regularly features" with respect to a 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 occur 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(180) day
period, shall to the extent permitted by law be deemed to be a regular and substantial
course of conduct.
(j) 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.
(k) Sex Oriented Bookstore. "Sex Oriented bookstore" means an establishment having as a
regular and substantial portion of its stock, revenue, interior business or floor space 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.
(1) 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,
Cabaret, Encounter Center, 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 areas 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 to a point
00ord/570o-900/10/2/00 6
i
where specified anatomical parts are exposed. 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:
(1) The area(s) devoted to the display of sex oriented merchandise -
and/or sex oriented material exceeds twenty-five (25%)percent of
the total stock, inventory, interior business display or floor space,
total display area of the business; or
(2) A business or concern which presents any type of live
entertainment which is distinguished or characterized by an
emphasis upon the display of specified anatomical areas or
specified sexual activities and which 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(180) day period, shall
to the extent permitted by law be deemed to be a regular and
substantial course of conduct.
(3) At least twenty-five percent (25%) of the revenue of the business is
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 areas.
(m) Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel" means a hotel or motel, which:
(1) 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
(2) rents, leases, or lets any room for less than a ten (10)hour period,
or advertises the provision of sexually explicit material. See Sex
Oriented Business for definition of"regular and substantial course
of conduct."
(n) 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 specified sexual activities or specified
anatomical areas.
00ordl570o-900/10/2/00 7
(o) 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,
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.
(p) Sex oriented mini-motion picture theater. "Sex Oriented mini-motion picture theater"
means an enclosed building with a capacity for less than fifty(50) persons regularly 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.
(q) 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,
prof ectors or other image-producing devices are maintained to show images to five (5) 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.
(r) Sex Oriented motion picture theater. "Sex Oriented motion picture theater" means an
enclosed building with a capacity of fifty(50) or more persons regularly 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.
(s) Specified sexual activities. "Specified sexual activities" means any of the following:
(1) Actual or simulated sexual intercourse, oral copulation, anal
intercourse, oral anal copulation, bestiality,masturbation,
including masturbation with the use of inanimate objects,
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
00ord1570o-900/1012/00 8
0 moo.3 q70
. (4) Actual or simulated fondling, erotic or sexually touching of human
genitals,pubic region, buttocks, cleft of the buttocks, female
breast; or anal region; 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; or
(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 areas are exposed.
(t) Specified anatomical areas. "Specified anatomical areas" means 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; or
(3) Any device, costume, or covering that simulates any of the body
parts included in subdivisions (1) and (2) above.
SECTION 3. Section 5.70.030 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.70.030 Application for Sex Oriented Business Permit. Each application for a Sex Oriented
Business permit shall contain the following information:
(a) Owner Information
(1) The full, true name and any other names, including aliases, used by the
applicant.
(2) The present business address and telephone number of the applicant.
(3) Acceptable written proof that the applicant is at least eighteen (18) years of
age.
(4) The social security number and state driver's license or identification card of
the applicant.
OOord/570o-900/10/2/00 9
... .............. ... .. ..
UQU'3�7c�
(5) 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
fingerprints or photograph shall be paid by the Applicant.
(6) 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.
(7) 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.
(8) All felony convictions of the applicant within the last five (5) years; all
misdemeanor convictions within the last two (2) years of the applicant of
any of the offenses set forth in California Penal Code Section 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 appear or may hereafter
be amended or renumbered; or any offense requiring registration under
California Penal Code Section 290, and the equivalent of the aforesaid
offenses outside of the State of California.
(9) 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. 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.
(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.
00ord/570o-900/10/2/00 10
(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 name(s) of the responsible persons)who will be on the
premises to act as manager during the times that the business is -
open, or a statement that the applicant has not yet selected the
manager(s).
(5) A site plan including floor plan, building elevations and parking lot
diagram showing the interior and exterior configuration of the
premises, including a statement of the total floor area occupied by
the Sex Oriented Business.
(b) Any other similar permits obtained in other jurisdictions, including
year of issuance and name of jurisdiction.
SECTION 4. Section 5.70.035 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.70.035 Sex Oriented Business Permit Issuance.
(a) Within ten (10)business days of receipt of a completed application, as set forth in
Section 5.70.030 and payment of the applicable fees, the Chief of Police shall issue a
Sex Oriented Business Permit. However, issuance of the permit does not preclude
revocation of the permit pursuant to Section 5.70.115.
(b) No sex oriented business shall be issued a permit or permitted to operate within the
City if any activity within the establishment is prohibited by federal, state, or local
law, provided that the local law is not pre-empted.
SECTION 5. Section 5.70.040 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.70.040 Sex Oriented Performer Permit
(a) All performers, as defined herein, must obtain a valid sex oriented performance permit
from the City.
(b) To obtain a Sex Oriented Performer Permit, the individual shall make application to the
Chief of Police on a form provided by the Chief of Police. Prior to submitting such
application, a non-refundable fee, established by resolution of the City Council, shall be
00ord/570o-900/10/2i00 11
Q. .3,7"7v
paid to the City to defray, in part, the cost of investigation and report required by this
chapter. The report, or a copy thereof, shall be supplied to the Chief of Police at the time
such application is submitted.
(c) The application for a permit does not authorize the engaging in a performance of live
performers depicting specified anatomical areas or involving specified sexual activities.
(d) A Sex Oriented Performer engaged in live entertainment shall provide proof of a valid
Sex Oriented Performer Permit upon demand of a police officer. Failure to provide proof
shall be a violation of this Chapter. -
(e) The fact that an applicant possesses other types of state or city permits or licenses does
not exempt the applicant from the requirement of obtaining a Sex Oriented Performer
Permit.
(f) 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) The applicant's height, weight, hair and eye color and date and
place of birth;
(3) Present residence address and telephone number;
(4) All felony convictions of the applicant within the last five (5)
years; all misdemeanor convictions within the last two (2) years of
the applicant of any of the offenses set forth in California Penal
Code Section 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 appear or may hereafter be amended or renumbered,
all offenses requiring registration under California Penal Code
Section 290; and the equivalent of the aforesaid offenses outside of
the State of California.
(5) The social security number and state driver's license or
identification number of the applicant.
(6) Acceptable written proof that the applicant is at least eighteen (18)
years of age;
(7) 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;
00ord/570o-900/1012100 12
-3
(8) The business address and telephone number where the
performance will take place.
(9) Any other similar permits obtained in other jurisdictions, including
year of issuance and name of jurisdiction.
SECTION 6. Section 5.70.080 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.70.080 Permits nontransferable. -
(a) 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. A Sex Oriented Business permit issued to a corporation shall be deemed
terminated and void when there is a change in any officer or director.
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.
(b) No Sex Oriented Business Performer permit may be sold, transferred or assigned to any
other person or persons.
SECTION 7. Section 5.70.100 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
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.
00orai570o-900i3 o/z/oo 13
(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 IS years shall be permitted within the
premises at any time except as pursuant to California Penal Code
Section 313.2.
(3) The Sex Oriented Business shall not operate or be open between the
hours of 2:00 a.m. and 11:00 a.m.
(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, advertise, offer, or
solicit any massage, acupuncture, figure modeling,piercing, 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 who shall possess a valid license from
the State of California 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
00ord/570o-900/10/2100 14
4X,0. 31-17b
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 thirty(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:
(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 (8) 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 to the north or to some designated
street or object and shall be drawn to a designated scale with
marked dimensions sufficient to show the various internal
dimensions of all areas of the interior of the premises to an
accuracy of plus or minus six (6) inches. The Chief of Police shall
00ord/570o-900/10/2/00 15
waive the foregoing diagram for renewal applications if the Owner
adopts a diagram that was previously submitted and certifies that
the configuration of the premises has not been altered since it was
prepared.
(2) No alteration in the configuration or location of a manager's
station(s)may be made without the prior approval of the Chief of
Police.
(3) It shall be 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.
(4) 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 (2) 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.
(5) It shall be the duty of the Owner(s) and it shall also be the duty of
all employees present on the premises to 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.
(6) 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 (2) or more Individual Viewing Areas.
(7) The premises shall be equipped with overhead lighting fixtures of
sufficient intensity to illuminate every place to which patrons are
permitted access with an illumination of not less than ten (10) foot
candle as measured at the floor level.
OOord/570o-900110/2100 16
(8) 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.
(e) The following additional requirements shall pertain to Sex Oriented Businesses providing
live entertainment.
(1) No person shall perform, and no owner, operator, or manager of a
Sex Oriented Business shall permit live entertainment for patrons
of a Sex Oriented Business except where.
(i) if unclothed performed upon a stage or platform
located at least eighteen (18) inches above the level of
the floor; and
(ii) whether clothed or unclothed, a distance of at
least six (6) feet is maintained between any performer
and any patron.
(2) The Sex Oriented Business shall provide separate dressing room
facilities for performers which are exclusively dedicated to the
entertainers' use.
(3) The Sex Oriented Business shall provide an entrance/exit to the
premises for performers which is separate from the entrance/exit
used by patrons.
(4) No performer shall have intentional physical contact with any
patron, and no patron shall have intentional physical contact with
any performer 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 performers and patrons
required by this Section.
(6) The Sex Oriented Business shall maintain a file containing the
Performer Permit of all performers at the business. The file shall be
available for viewing during all police inspections.
SECTION 8. Section 5.70.115 of the Huntington Beach Municipal Code is hereby
amended to read as follows.
00ordi570o-900/1 azroa 17
5.70.115 Revocation of a Sex Oriented Business Permit.
(a) The Chief of Police shall revoke a Sex Oriented Business Permit when:
(1) 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 § 290, or any violation of Penal Code § 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; or
(2) If, on two (2) 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 this section 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; or
(3) If the permit holder or an employee has knowingly allowed prostitution, or
solicitation for prostitution, 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
or
(4) The Sex Oriented Business has been operated in violation of any of the
requirements of the Huntington Beach Municipal Code if
(1) the violation is of a continuous nature (i.e.
cannot be remedied by immediate cessation of the
activity such as a building or structural violation), 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) the violation is of a noncontinuous nature, two
(2) or more violations of the same provision or four(4)
or more violations of any other of the provisions of the
Huntington Beach Municipal Code occur(regardless of
00ordl570o-900/10/2/00 18
whether notice of each individual violation is given to
Owner)within any twelve (12) month period; or
(5) The applicant has made material misrepresentations or fraudulent,
false, or misleading statements in the application; or
(6) Permit holder has had a Sex Oriented Business permit or other
similar license or permit denied or revoked for cause by this city or
any other jurisdiction located in or out of this state prior to the date
of application; or
(7) That the Permit holder, 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 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.
(b) Upon determining that grounds for permit revocation exist, Chief of Police shall
furnish written notice of the revocation to the Permit holder. Such notice shall
summarize the principal reasons for the revocation.
(c) Upon receipt of written notice of revocation, if the Permit holder files within thirty(30)
days a petition for writ of mandate in state court to review the revocation,then the City
shall not enforce the revocation unless the Superior Court has denied the writ or the City
has obtained injunctive relief. The notice will be deemed received if the Chief of Police
has placed the notice in first class mail and the notice is not returned within ten (10) days
and the City has made a good faith attempt at personal service.
If Permit holder fails to file a writ of mandate within thirty(30) days of receipt of written
notice of revocation, the City shall enforce the revocation.
SECTION 9. Section 5.70.120 of the Huntington Beach Municipal Code is hereby
amended to read as follows:
5.70.120 Revocation of a Sex Oriented Performer Permit.
(a) The Chief of Police shall revoke a Sex Oriented Performer Permit when:
(1) The applicant has made material misrepresentations or false or
misleading statements in the application; or
(2) The Permit holder is convicted of a felony or misdemeanor which offense
is classified by the state as an offense involving sexual crime against
00ord/570o-900n 0/2/00 19
zb
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 § 290, or any violation of Penal Code § 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(a), 653.22; or
(3) The Sex Oriented Performer has violated the requirements of the
Huntington Beach Municipal Code; or
(4) Permit holder has had a Sex Oriented Performer Permit or other similar
license or permit denied or revoked for cause by this city or any other
jurisdiction located in or out of this state within one (1) year prior to the date
of application.
(5) Upon determining that grounds for permit revocation exist, Chief of Police
shall furnish written notice of the revocation to the Permit holder. Such notice
shall summarize the principal reasons for the revocation. (3431-7/99)
(b) Upon receipt of written notice of revocation, if the Permit holder files within thirty(30)
days a petition for writ of mandate in state court to review the revocation, then the City
shall not enforce the revocation unless the Superior Court has denied the writ, or the City
has obtained injunctive relief. The notice will be deemed received if the Chief of Police
has placed the notice in first class mail and the notice is not returned within ten (10) days
and the City has made a good faith attempt at personal service.
(c) If Permit holder fails to file a writ of mandate within thirty(30) days of receipt of written
notice of revocation, the City shall enforce the revocation.
SECTION 10. Section 5.70.130 of the Huntington Beach Municipal Code is
hereby amended to read as follows:
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.
SECTION 11. Section 5.70.140 of the Huntington Beach Municipal Code is
hereby amended to read as follows:
5.70.140 Violation--Penalty. Any violation of this chapter shall be punishable by:
(a) Administrative Citation. Violation of this Chapter is subject to the issuance of an
administrative citation under the provisions of Chapter 1.18 of this Code. An operator
may be cited for violations occurring on the premise in their presence or for knowingly
permitting violations of this Chapter;
00ord1570o-900/10/2/00 20
3L17D
(b) Civil Action. The City Attorney may institute an action in any court of competent
jurisdiction, including an action to abate a nuisance, to restrain, enjoin, or abate the
condition(s) found to be in violation of this provisions of this Chapter, as provided by
law.
(c) It shall be a violation of this Chapter for any principal, including but not limited to any
operator, to permit, procure, counsel or assist any agent of that principal, including but
not limited to an employee or independent contractor, to violate any provision of this
Chapter.
SECTION 12. Section 5.70.150 of the Huntington Beach Municipal Code is
hereby amended to read as follows:
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.
SECTION 13. This ordinance shall become effective 30 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 day of October , 2000.
Mayor
ATTEST:
dv� _ APPROVED AS TO FORM:
City Clerk
1i �.'ca-ar
City Attorney
REVIEWED AND APPROVED:
INITIATED AND APPROVED:
City ministrator
City Attorney
00ord/570o-900/10/2/00 21
Ord. No. 3470
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 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 -egular meeting thereof held on the 2na r day of October, 2000, and was again read
to said City Council at a re ular meeting thereof held on the 16th day of
October, 2000, and was passed and adopted by the affirmative vote of at least a
majority of all the members of said City Council.
AYES: Harman, Garofalo, Green, Bauer
NOES: Julien, Sullivan, Dettloff
ABSENT: None
ABSTAIN: None
I,Connie Brockway CITY CLERK ofthe City of
Huntington Beach and ex-officio Clerk of the City Council,
do hereby certify that a synopsis of this ordinance has been
published in the Independent on
12000
In accordance with the City Charter of said City City Clerk and ex-ofl'ieio Clerk
Connie Brockway, City Clerk of the City Council of the City
' &Uty city C1erk of Huntington Beach, California
g:/ordinanc/ordbkpg.doc
10/17/00