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HomeMy WebLinkAboutModification of Sex Oriented Business Regulations - Ordinanc CITYOF HUNTINGTON BEACH MEETING DATE: October 2, 2000 DEPARTMENT ID NUMBER: CA Council/Agency Meeting Held: t 2 w d d Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied _ i i na re Council Meeting Date: October 2, 2000 Department ID Number: YA CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION r: SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: GAIL HUTTON, CITY ATTORNEY and IvyI m; RAY SILVER, City Administratordo C� ✓ r PREPARED BY: GAIL HUTTON, CITY ATTORNEY -3 SUBJECT: Modification of Sex Oriented Business Regulations and Findings Statement of issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Should the City enforce all sex oriented business (SOB) regulations civilly, make changes to the existing SOB ordinance to expand the hours of operation, make language changes for the purpose of clarity, add definitions for the purpose of clarity, and require a 6 foot radius between performers and patrons, and should the City adopt additional findings in support of the existing sex oriented business ordinance and the amendments to it? Funding Source: Not applicable. Recommended Action: Approve introduction of Ordinance No. 3470 amending, Huntington Beach Municipal Code Chapter 5.70 limiting enforcement of sex oriented business regulations to civil remedies, expanding the hours of operation, making minor language changes, clarifying permitted conduct of performers and adopting findings which support the existing ordinance and the ordinance as amended. Alternative Action(s): Do not adopt Ordinance No. 3470 and do not adopt findings. sobrca10-00 -2- 9/22/00 3:52 PM 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. 00ord/570o-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, projectors 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 00ord/570o-900/10/2/00 8 (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 (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 person(s) 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. (6) 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 OOord/570o-900/10/2/00 11 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; OOord/570o-900/10/2/00 12 (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. (Urg. 3341-10/96) (2) All indoor areas of the Sex Oriented Business within which patrons are permitted, except restrooms, shall be open to view at all times. (Urg. 3341-10/96) (3) Signage shall eonfefm to the standards of the Huntington Beaeh Zoning and Subdivision Or-dinanee Gode exeept that stieh signs shall e „tai no phet.,g-.phs silhouettes,ouettes .a,- ;,,— I ,I,IeS Ffienuments, sign shapes -- -. ,--projections, or-other-grap Y-epr-esentafiens, whieh depiet the human body or-anatomy, or-an hereof-, whether clothed or-tinelothed, ineluding without m�t i• ., Ito»Ρ ifie .,t,,,,,iea�,t�e�ep�en representations ��iet "spe or- "speeified sexual aetivities." . 3341-10/96,3431-7i99) (b) General Provisions (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) No person under the age of 18 years shall be permitted within the premises at any time except as pursuant to California Penal Code Section 313.2. (Urg. 3341-10/96, 3431-7/99) (3) The Sex Oriented Business shall not operate or be open between the hours off. 2:00 a.m. and 11:00 a.m. (Urg. 3341-10/96) (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 legisdrfdmc570/8/24/00/11:29 AM 19 which does not provide restroom facilities to its patrons or the general public. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) legisdrft/mc570/8/24/00/11:29 AM 20 (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. (Urg. 3341-10/96) (d) The following additional regulations shall pertain to Sex Oriented Motion Picture Arcades which provide more than one viewing area: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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 1egisdrft/mc570/8/24/00/11:29 AM 21 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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. (Urg. 3341-10/96, 3431-7/99) (e) The following additional requirements shall pertain to Sex Oriented Businesses providing live entertainment. Speei fled Sexual A e fiv; (Urg. 3341-10/96) (1) No person shall perform, and no owner, operator,or manager of a Sex Oriented Business shall permit live entertainment fevealing e depieting c..eei f;oa Anatepaieal for patrons of a Sex Oriented Business except where: (Urg. 3341-10/96) (i) if unclothed performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (Urg. 3341-10/96, 3431-7/99) 1egisdrft/mc570/8/24/00/3A2 PM 22 (ii) whether clothed or unclothed, a distance of at least six (6) feet is maintained between any performer and any patron. (Urg. 3341-10/96, 3431- 7/99) (2) The Sex Oriented Business shall provide separate dressing room facilities for performers which are exclusively dedicated to the entertainers' use. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 5.70.110 Inspections. (Urg. 3341-10/96, 3431-7/99) The permit holder shall allow the City of Huntington Beach and its 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. (Urg. 3341-10/96, 3431-7/99) 5.70.115 Revocation of a Sex Oriented Business Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Business Permit when: (Urg. 3341- 10/96, 3431-7/99) legisdrft/mc570/8/24/00/3A2 PM 23 (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 (Urg. 3341- 10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (4) The Sex.Oriented Business has been operated in violation.of.any_of the requirements of#+is Chapter-the Huntington Beach Municipal Code and if(Urg. 3341-10/96, 3431-7/99) (i) if-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 (Urg. 3341-10/96) (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 der the Huntington Beach 1egisdrft/mc570/8/24/00/3:21 PM 24 Municipal Code occur(regardless of whether notice of each individual violation is given to Owner) within any twelve (12) month period; or (Urg. 3341-10/96, 3431-7/99) (5) The applicant has made material misrepresentations or fraudulent, false, or misleading statements in the application; or (3431-7/99) (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 (3431-7/99) (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. (Urg. 3341-10/96, 3431-7199) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 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. (3431-7/99) 5.70.120 Revocation of a Sex Oriented Performer Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Performer Permit when: (3431-7/99) (1) The applicant has made material misrepresentations or false or misleading statements in the application; or (3431-7/99) 1egisdrft/mc570/8/24/00/3 A 9 PM 25 (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 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 (3431-7/99) (3) The Sex Oriented Performer has violated the requirements of tkis Chapte the Huntington Beach Municipal Code; or(3431-7/99) (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 five (5)one (1) year prior to the date of application. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) 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. (Urg. 3341-10/96) 5.70.140 Violation--Penalty. Any violation of this chapter shall be guilty of MISDEMEANOR, punishable by:a fine of five 1,,,nd-0,1 a„11.,, iecnm or-b, . . . ent in the eetinty jail for-a period not to exeeed six (6) months, eF by both sueh fine and „t (a) Administrative Citation. Violation of this Chapter is subject to the issuance of an administrative citation under the provisions of Chapter 1egisdrft/mc570/8/24/00/3:19 PM 26 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; (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. 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 AR ri, ., ,1. addition toor-in u"„ of pFeeeedings for-abatement, remova! or-enjoinment thefeefi, in the ma law. He shall take sueh other- steps and shall apply to sueh eouft or-eeut4s as mayl. ion to gfant sueh relief as will abate or-Y-ernove sueh Sex Ofiented Business and-f est-r-A-in. —Andd per-son from operating, eendueting of:maintaining a Sex Oriented Business eentr-afy gre��r of this-ehapcen (Urg. 3341 1 0r0 966) 5.70.160 Minors and Intoxicated Persons. (Urg. 3341-10/96) (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 except as pursuant to California Penal Code Section 313.2. A sign giving notice of this provision shall be prominently posted at each entrance to the premises of the Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) 1egisdrft/mc570/8/24/00/3:19 PM 27 (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. (Urg. 3341-10/96) 5.70.170 Employment of Persons Without Permits Unlawful. (a) 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 Performer Permit. (Urg. 3341-10/96, 3431-7/99) (b) The owner, operator, manager or permittee in charge of or in control of the Sex Oriented Business which provides live entertainment shall provide proof of a valid Sex Oriented Performer Permit for each individual engaged in live performance upon demand of a police officer. Failure to provide proof is a violation of this chapter. (3431-7/99) 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. (Urg. 3341-10/96) 1egisdrft/mc570/8/24/00/3:19 PM 28 RCA ROUTING SHEET INITIATING DEPARTMENT: City Attorney SUBJECT: Modification of Sex Oriented Business Regulations and Findings COUNCIL MEETING DATE: September 5, 2000 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETYMED FORWARDED Administrative Staff Assistant City Administrator Initial City Administrator Initial City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: SpaceOnly) RCA Author: SEP-01-00 16: S6 FROM=SUITE SOO CO ID: 3104420699 PAGE 2/3 LAW OFFICES WESTON, GARROU & DEWITT JOHN H. WESTON' A PARTNCRSKIP OP PROPLaSIONA.0 GORPORATIONS $AN flICGO OrilCc .. CI.YDE DcWITT•f WILSHIRE BUNDY PLAZA 432 F STREET G. RAN DALI_ GA FRO U'= SUITE 202 COLIN C. P40LLEY 12121 WILSHIRE: BOULEVARD, SUITE 900 SAN OIEGO, CA 52tO1-613a _I,JLIP A, ad:wj1ENS Los ANGELES. CAUFOiRN1A 90025-1176 FAX (619) 239-1717 OF COUNSEL "' [310) .442-0072 CB19) 232-5455 .. AU134EEY 1, CINN ., CATF(Y C, CR055ON � � FAX (310) 442^0899 . A. DALE mANICOM+ 'A OROft SSIONAL CORPORATION 'At,*Q AAPMITTCQ IN TEXAS .. .. ;ALSO d0MITTEp IN LrAH .. September'1, 2000 TRANSMITTED ON THIS DATE BY TELEEAX ONLY TO V14) 374-.1557 Hon. Mayor Garafalo and M&inbers of the Huntington Beach City Council' c/o City Clerk City lull 2000 Main Street Huntington.Beach, CA 92648 Re: Request for postponement of initial reading of new ordinance proposing further restrictions on adult business at 18121 Beach Boulevard (Agenda . Item G-2-a.for,,City Council meeting of Tuesday, September 5, 2000) Dear Mayor and Council Meinbers: Up until very'ziec6rdy, I`:had understood from•conversations with attorneys,in your City Attorney's office that:'tlie City's anti-nudity ordinance was to be reintroduced' on a first reading at your session of Tuesday, September 5, 2000. However, after' speaking with your City Attorneys office this week, I have now been informed that it is recommending tabling consideration of that particular ordinance pending further, consideration of the recent Ninth Circuit Court of Appeals precedent I mentioned in my prior'letter,but, instead;to-i itroduce the first reading of an entirely new adult business ordinance amendment calculated' to impose yet more new restrictions on my client's business. The City Attorney's'office had promised to fax me a copy of the proposed , draft of this latest proposed amendment so I could carefully,study it and have: a reasonable opportunity to present a meaningful challenge to it, and to the studies which assertedly form its basis,'at the time of your meeting. .I had indicated that this type of challenge would, likely require: at least two' weeks to prepare and had asked if,:the , council would be willing to consider postponement of..:the first reading of the ordinance for two weeks in order to allow .us a chance. to study the ordinance and.'make:any.. . presentation deemed necessary to preserve .,our legal position in the event of any:. of 2P11 LiNT -..C-DMM 1`� SEP-01-00 16= S9 FROM=SUITE 900 CO ID= 3104420899 PAGE 3/3 LAW OFFICES WESTON. GARROU & DEWITT A PARTN[R!IwP OF..0,K$S10NAL COOpORATIONS Hon. Mayor Garafalo and.Members of the Huntington Beach City Council September 1, 2000 Page 2 subsequent court challenge. See.City of Erie V� Pap's, A1.M.,_U.S. , 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). Unfortunately, as of 4:30 p.m today, the draft of the proposed amendment had,:, still not been sent to us,.notwithstanding assurances by the City Attorneys office:that . I would get it well in advance of its introductory reading. Based on all of this,.and iri.order that MY client may have a reasonable oppor huii- ty to challenge any of the..findings offered in support of the new amendment to be proposed,I am respectfully requesting that the Council,postpone for at least two weeks, its consideration of the first reading of this proposed.new ordinance (again, found as Agenda item number G 2-a).. I am further informed that there is no emergency situation to preclude such a temporary deferral as there have been no unlawful' activities occurring at my client's club involving proximity between dancers and customers. Your consideration of this.request is greatly appreciated. Sincerely, WESTON, GARROU & DEj!= By_G G. RANDALL GARROU GRG:ks LRG4822 cc. City Attorney Gail. Hutton (via fax: 714/374-1590) City Administrator Ray Silver (via fax: 714/536-5233) SEP-01-00 18 - S8 FROM=SUITE 900 CO ID: 3104420899 PAGE 1/3 i FAX TRANSMISSION FROM WESTON, GARAOU & DeWITT 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025-1176 Phone: (310) 442-0072 FAX: (31.0) 442-0899 ! �' DATE: September 1, 2000 TIME SENT: 5:00 pm PDT �w DELIVER TO: Hon.Mayor Garafalo and Members of the Huntington Beach City Council ADDRESS: c%City Clerk, City Hall FAX PHONE NUMBER: (714) 374-1557 FROM: Kam for G. Randall.Garrou TOTAL PAGES, INCL. COVER SHEET: 3 DOCUMENT DESCRIPTION: Letter requesting postponement of first reading of new ordinance appearing as Agenda No. G-2-a for City Council meeting of Tuesday, September 5, 2000. MESSAGE: NO hard copy to follow by mail. IMPORTANT: THIS MESSAGE Is NTI:NDED ONLY FOR THE USE OF THE INDMDUAL OR ENTITY TO WHICH Cf IS ADDRESS®AND OONTAR%INE;DRMA't'IOIV THAT IS PRMLEGID CONFIDENTIAL AND Expwr FROM DISCLOSURE CINDER APPLICABLE LAW. IF TM READER OF THE.$MESSAGE IS NOT THE WENDED RECOENT,ORTHEF.NII DYEEORAGENTRESPONSMLEWRDEUVERINGTHEMZSSAG£TOTHE9QM DiEDRECMM,YOU ARE HEREBY NOTIFIED THATANYDISSEMMTJOK MRIELMON OR COM4G OFIM COMMUMCATIONIS STRICTLY PROMTPED. IFYOU HAVE RECE=TM TELECOPY IN ERROR,PLEASE MMEDIATELY NOTIFY US BY TELEPHONE TO ARRANGE FOR THE RETURN OF THE ORIGINAL DOCUiviQll""TO W. CLIENT NO.: 119.0 1 04 CALL NUMBER ABOVE IF TRANSMISSION IS INCOMPLETE OR ILLEGIBLE. L� CITY OF HUNTINGTON BEACH Inter-Department Communication TO: HON. MAYOR and COUNCIL MEMBERS FROM: GAIL HUTTON, City Attorney REOEIVED FROM AND MADE A PART OF T RECORP AT TH- OC)UNOILMSETINQOFOPNCE OF THE CITY CLEK __________ DATE: September 18, 2000 OONNIE BROCKWAY,CITY CLERK SUBJECT: LATE COMMUNICATION City Council Meeting 9/18/00 AGENDA ITEM G1A (Sex-Oriented Business Ordinance) Ordinance No. 3470,pertaining to the regulation of sex-oriented businesses, is presented tonight for second reading. A small portion of the findings that preface the ordinance reference public nudity, however, the public nudity law has been tabled until a future date. Findings pertaining to public nudity will be relevant at that later time, however, the public nudity findings are essentially superfluous to the ordinance before you tonight. The findings were prepared at a time when Council was going forward with both ordinances at once. I am aware that some of you have met with the self-identified "naturalists" who advocate non- sexual limited public nudity, such as nudity in posted sections of public beaches. I am also aware that the "naturalists" have been lobbying to have the findings concerning public nudity removed from the findings in support of the sex-oriented business ordinance. If you would like to direct the removal of the public nudity findings from the sex-oriented business ordinance, it will require this matter to be continued to the next city council meeting pursuant to City Charter § 500(b). The City Attorney supports the removal of the findings which do not pertain to the sex-oriented business ordinance. Please give direction as to whether you wish to proceed tonight and pass the ordinance in its current form or direct removal of the findings in support of the anti-nudity ordinance. GAIL HUTTON, City Attorney c: Ray Silver, City Administrator Ron Lowenberg, Police Chief Connie Brockway, City Clerk 7/570 late CaUh�lL C'ly�P ORDINANCE NO. 3470 �.N *'0qW (A AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH Ia J Z�'a° AMENDING CHAPTER 5.70 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO REGULATION AND OPERATION OF SEX ORIENTED BUSINESSES AND FINDINGS IN SUPPORT OF CHAPTER 5.70 The City Council 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 (19h); Oklahoma City, Oklahoma(1986); Indianapolis, Indiana, Department of Metropolitan Development (1984); Houston, Texas, City Council Report (1983); Beaumont, Texas (196); Minnesota Crime Prevention Center, Inc., Minneapolis (1980); Phoenix, Arizona (r`979); 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 t.e adverse secondary effects of sex-oriented businesses. Based on information provided by the City of Newpo Beach, copies of the dockets of cases on file in the Orange County Superior Court ( arbor) for convictions of Penal Code section 647(b)(solicitation for prostitution), and atta;hments to the pleadings filed by the City of Newport Beach in the case of Tily B. v City of\'Vewport Beach (1999) 69 C.A.4`h 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, and 'kho appear in a state of undress in such public businesses, have been found to have engagedNn sexual activity with patrons on the site of the businesses. Based on the same evidence, nude performers in 00ord/mc570-o/9/22/00 1 Newport Beach have engaged in acts of prostitution with patrons of the establishments allowing nudity in public in that city. The�ity 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 Beacli 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-touchinNprovisions 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 Aex-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, 1\1\5 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. 199.3), cert. denied 511 U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Gir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied, 120 S.Ctk 1553, (2000); several California cases, including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993\), cert. 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 (19Aj; 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 (1 lth Cir. 1991), cert. 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 00ord/mc57049/22/00 2 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 of sex oriented businesses did not result in majority opinions. (City of k\e 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).) 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 Kandylan�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 exually explicit materials is a compelling government interest, including Crawford v. Lung en, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.AppAth 1075 (1995). 1 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 an,d 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\(9th Cir. 1986), Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), and Tily B. v. City``\fNewport Beach (1999) 69 Cal.AppAth 1, regarding how live sex-oriented entertainment facilities result 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. e 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, 1�29 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 00ord/mc570-o/9/22/00 3 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 unlimite��aadditional 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. It is not the intent of the CityCouncil in enacting this Ordinance or an provision g Y 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 Counci'1 does not intend to regulate in any area preempted by California law, including but not li 'ted to, regulation of obscene speech. Nothing in this Ordinance is intended to authorize, legalize, or permit the establishment, operation, or\ aintenance of any business, building, or use which violates any City ordinance or any sta `e 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 (11t' CIA 1999); and City of Colorado Springs v. 2354Inc., 896 P.2d 272 (1995). 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 b a�phasis 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 00ord/mc570-o/9/22/00 4 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) Eric o\ter Center. "Encounter center" or "rap studio" means any business, agency or person�who, for any form of compensation, consideration or gratuity, regularly provides aplace 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) 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 o vning 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 this Chapter; "corporation" shall also include not for profit corporations and limited liability corporations. (f) Operator: The permitee or the own"er(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. (g) Performer. "Performer" means any person who dances, models, entertains, and/or performs specified sexual activities in a sex oriented business. h Regularly Features. "Regularly features" with respect to a Sex Oriented theater or ( ) �v g Y � P 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. i Seminude. "Seminude" means a state of dress in which clothin covers no more ( ) � g than the genitals, pubic region, buttocks, areola of the female breast, as well as portions of the body covered by supporting straps or devices. Sex Oriented Bookstore. "Sex Oriented bookstore" means an establishment having �) �, g as a regular and substantial portion of its stock, revenue, interior business or floor 00ord/mc570-o/9/22/00 5 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. (k) Sex OrientedkBusiness. "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. As used in this chapter, the terms "regular and substantial course of conduct" and "regular and substantial portion'bf its business" shall mean any Sex Oriented Business where one or more of the following conditions exist: 1 The areas devoted to the display of sex oriented ( ) ( ) � pY merchandise and/or sex oriented material exceeds twenty- five (25%) percent ofythe 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 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. (1) Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel� means a hotel or.motel, which 00ord/mc570-o/9/22/00 6 (1) as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with cl sed circuit television, video recorders or players or other medium, material which is distinguished or characterized by an eni 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." m 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 activitie&r specified anatomical areas. n 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. (o) 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 relaing to specified sexual activities or specified anatomical areas for observation by patrons therein. (P) Sex Oriented motion picture arcade. "Se', 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 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 specif ed anatomical areas. Sex Oriented motion picture theater. "Sex Oriented motion picture theater" means (q) P 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. 00ord/mc570-o/9/22/00 7 (r) 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 useNof 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, arousdI or tumescence; (3) Use of human or an�imal ejaculation, sodomy, oral i7 copulation, coitus,or masturbation; or (4) Actual or simulated fondling, erotic or sexually touching of human genitals, pubic region, buttocks, cleft of the buttocks, female breast; or anal region. (5) Masochism, erotic or sexua\Iyyori e 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. (s) 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. 00ord/mc570-o/9/22/00 8 (3) Any device, costume, or covering that simulates any of the body parts included in subdivisions (1) and (2) above. SECTIO 3. Section 5.70.030 of the Huntington Beach Municipal Code is hereby amended to read s follows: 5.70.030 Applicati\for Sex Oriented Business Permit. Each application for a Sex Oriented Business permit shall contain the following information: a Owner Information (1) The full, tree name and any other names, including aliases, used by the applicant. \ (2) The present business address and telephone number of the applicant. (3) Acceptable wri ten 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. (5) The applicant's fingerp>*nts 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 t%o (2) years of the applicant of any of the offenses set forth in California Penal Code Section 315, 316, 266a, 266b, 266c, 266e, 266g,2266h, 2661, 647(a), 647(b) and 647(d) of the California Penal Code as,&se 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. OOord/mc570-o/9/22/00 9 (9) ' f the applicant is a corporation, the name of the corporation shall be Nd forth exactly as shown in its articles of incorporation or charter, ence 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 addresse 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. (. ) A 2 description of the type e of Sex Oriented Business for which the Permit is requested and thelproposed 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 person(s) 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. 6 An other similar permits obtained in other jurisdictions, O Y P J including year of issuance and name of jurisdiction u� 00ord/mc570-o/9/22/00 10 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) b �iness 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 busine\ 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 to read as follows: (a) All performers, as defined herei;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 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 permit does not authoY ze the engaging in a performance of ( ) Pp live performers depicting specified anatomLl areas or involving specified sexual activities. (d) A Sex Oriented Performer engaged in live en\ste shall provide proof of a valid Sex Oriented Performer Permit upon dolice officer. Failure to provide proof shall be a violation of this Cha (e) The fact that an applicant possesses other typr city permits or licenses does not exempt the applicant from the requitaining a Sex Oriented Performer Permit. The completed application shall contain the ormation 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; OOord/mc570-o/9/22/00 1 1 (2) The applicant's height, weight, hair and eye color and date and place of birth; (3) Present residence address and telephone number; (4) X11 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, 2661, 647(a), 647(b), and 647(d) of the California Penal Code as those sections now appear or may - hereafterNbe 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. ( ) P 6 Acceptable written r,00f that the applicant is at least p eighteen (18) years ofgage; (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; (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. 5.7 f the Huntiri ton Beach Municipal Code is hereby SECTION 5. Section0 080 o g p y 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, transferor 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 aNsurrender or termination of such permit, and in such case, the permit, upon notification to 00ord/mc570-o/9/22/00 12 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 o Sex Oriented Business use to another type of Sex Oriented Business use shall al render the permit null and void. (b) No Sex Orrented Business Performer permit may be sold, transferred or assigned to any other person or persons. SECTION 6. 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. (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 ears shall be ermitted within ( ) p g Y � p 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, 00ord/mc570-o/9/22/00 13 t 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 o'r*reproduction equipment. The foregoing provisions of this para. aph shall not be applicable to a Sex Oriented Business whic deals exclusively with sale or rental of merchandise which is not u ed or consumed on the premises, such as a Sex Oriented Booksto and which does not provide restroom facilities to its patrons oNhe general public. 5 The Sex On\ented 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 ich 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 suubparagraph shall be uniformed in such manner so as to be readily identifiable as a security guard by the public. No securitNIuard required pursuant to this subparagraph shall act 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) niches 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 00ord/mc570-o/9/22/00 14 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) Pe rr anent 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 litional re ulations shall ertain to Sex Oriented Motion Picture ( ) gg P Arcades which provide more than one viewing area: Upon application for a Sex Oriented Business Permit, the (1) p pp _ application shaft be accompanied by a diagram of the premises showin . 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 wilI not be permitted. A manager's station may not exceed thirty two (32) square feet of floor area with no1dimension greater than eight (8) feet. The diagram shall als designate the place at which the Sex Oriented Business Perm,it 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 waive the foregoing diagram for renewal applicalions if the Owner adopts a diagram that was previously submitted and certifies that the configuration of the premises has\notbeen altered since it was prepared. (2) No alteration in the configuration or locatof 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. OOord/mc57049/22/00 15 (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 remises has two (2) or more manager's stations designated, tl en 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 Tecified 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 areallof 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 ViewinArea may be occupied by more than ( ) gN P one person at any one time. "Individual Viewing Area" shall mean a viewing area designed for occupancy by one person. Individual Viewing Areas oYhe 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 wit k�n illumination of not less than ten (10) foot candle as measured at the floor level. (8) It shall be the duty of the Owner(s) and it shall also be the duty of all employees present on the premises t insure that the illumination described above is maintained Nallimes that any patron is present on the premises. (e) The following additional requirements shall pertain to Sex Oriented Businesses providing live entertainment: ti OOord/mc570-o/9/22/00 16 (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) performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (ii) a distance of at least six (6) feet is maintained between any performer and any patron. - (2) The Sex Wiented 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 foreperformers which is separate from the entrance/exit useddby patrons. 4 No erformer shall�have intentional physical contact with ( ) p � 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'(3,0) 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 ( ) g Permit of all performers at the business. The file shall be available for viewing during all police inspections. SECTION 6. Section 5.70.115 of the Huntington Beach Municipal Code is hereby amended to read as follows: 5.70.115 Revocation of a Sex Oriented Business Permit. (3431-7/99) 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 00ord/mc570-o/9/22/00 17 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, 344, 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 activi't�y 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 ( ) p P3 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 dlyllowed 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 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 (hl0) 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; or (5) The applicant has made material misrepresentations or fraudulent, false, or misleading statements in the application; or OOorcUmc570-o/9/22/00 18 (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 copulationor masturbation to be committed or allowed in or upon the premises where such Sex Oriented Business is to be - located, or to It 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 injunct ve relief. 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 7. 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 Orientederformer 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 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 a - lation of Penal Code § 243.4, 261, 261.5, 264.1, 266, 266a through0 266k, inclusive, 267, 286, 286.5, 288, 288a, 311 through 311.10, inclusive, 314, 315, 316 or 647; or OOord/mc570-o/9/22/00 19 (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 to of application. (5) UpoVetermining 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. (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. c If Permit holder fails to file�a writ of mandate within thirty 30 days of receipt o ( ) Y( ) Y p f written notice of revocation,�,he City shall enforce the revocation. SECTION 8. Section 5.70.14\f the Huntington Beach Municipal Code is hereby Y 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; (b) Civil Action. The City Attorneymay institute \anaction in an court of com etent Y � Y p 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 f that principal, including but not limited to an employee or independent contractor, to violate any provision of this Chapter. SECTION 9. Section 5.70.150 of the Huntington Beach Municipa Code is hereby amended for content to read as follows: 00ord/mc570-o/9/22/00 20 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 10. This ordinance shall become effective 30 days after its adoption. PASSED AND ADO TED by the City Council of the City of Huntington Beach at a regular meeting thereof held o the day of , 2000. ATTEST: City Clerk Mayor REVIEWED AND APPROVED: PROVED AS TO FORM: City A ministrator .11 City Attorney INITIATED AND APPROVED: r City Attorney OOord/mc570-o/9/22/00 21 �o 6-Q reQ6 a�k `3(/� !ot RECEIVED FROM AND MADE A PART OF THE RECORD AT TTH COUNCIL MEETING OF OFFICE OF THE CITY K 9/5/0 0 CONNIE BROCKWAY,CITYLCLERK cS 'o Dear City Council members, City Attorney, and concerned City residence, I have watched in disbelief at how the Flamingo Club, a sexually orientated business, has quietly slithered into our community. Every time I drive past that business my stomach aches. I feel trapped! There seems there is nothing I can do to prevent a business like that in our city because it already was allowed to open. I want you to be aware that this kind of business does not just "accidently" come to a city because they like our great city. I have found out that they target cites that have little or no ordinances pertaining to sexually oriented businesses. They use tricks, like opening Nude Juice Bars, which have lower age and contact restrictions so when they get their alcohol license you feel grateful because there are more restrictions! It is all a game intended to get what they want through unethical means. Studies have shown that these kinds of businesses are horrible for a city. If you take away all the silly rationalizations people make in support of this kind of business you can only see the hurt they produce in the lives of ALL involved in this industry. Because of the business I am in I see the under belly of what this industry produces. This is a very addictive vise which destroys the human sole. It is financially and emotionally destructive to the individuals addicted to it and it has severe effects on their immediate family members and their extended family members. I do not think we as a community want to be responsible for providing that kind of strife in a persons life. Well, let me step down from my soap box and give you some practical information. I have been on enough committees to know people can complain and complain about a problem and never do any thing about it! I am here to tell you I am not one of those people. have done some of your home work for you. I have been in contact with the American Center For Law and Justice. They have provided a model ordinance that has been successful in establishing a ordinance restricting Sexually Oriented Businesses that, so far, has proven to be Very strong and lawful. The other good news is that once this ordinance has been approved the city can make any pre-existing sexually oriented business comply with the new ordinance within 6 months to a year. I respectfully submit this Model Ordinance to the City Council members and the City Attorney to read and hopefully to approve as soon as possible. Our City deserves the BEST and hopefully this information will help the city continue to STAND TALL in the face of adversity. Do the right thing! Fight for it ! Sincerely, Terry Fisher P.S Call if you have any questions! I am willing to do what ever it takes to stop the assult on our comminity. 71 y 'l9_58s6 ✓t --- - ______ RECEIVED FROM AND MADE A PART OF THE RECORD AT THE COUNCIL MEETING OF OFFICE OF THE CITY CLERK CONNIE BROCKWAY,CITY CLERK REPORT TO: THE AMERICAN CENTER FOR LAW AND JUSTICE ON THE SECONDARY IMPACTS OF SEX ORIENTED BUSINESSES Produced �y: Peter R. Hecht, Ph.D. ERG/Environmental Research Croup 124 North Third Street Philadelphia, PA 191Q6 March 31 , 1596 5tr. �.ceu�e i is• �rrgMERtGAJV 4:CN[MR FOR t.Arf ANa JUSTICE i 11-, Mif_::37�7996 ON THE SECONDARY IMPACTS OF SMALLY OFUENT91D BUSINESSES PAGE-1 TASL>: of CoHTENTs Objective 2 Summary 2 Major Points 3 Historic Overview 4 Criminal Activity 5 Property Values 13 A. Aesmments N 13 13. Property Values 94 Relationship of Businesses to their Local Neighborhood 15 Implicatoris for Small towns 1 Sources 8 ERO/ErMrorm a ml As owd Croup Ma O 31, 1996 SEP. 5.2000 T112;53PM,MERICAN CENTER FOR LAW AND JUSTICE NO.114 Mar?:431, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED SUSWESSES PAGE-Z OBJECTIVE' The object of this report is to review the current state of knowledge about the secondary impacts of sex oriented businesses upon its immediate neighborhood. This report deals with the secondary impacts upon nearby residential and commercial areas, as well as educa- tional, recreational, and religious facilities with particular reference to what this means for smaller municipalities. a SUMMARY Sex oriented businesses, although protected under First Amendment guarantees, can facilitate and support undesirable and detrimental p�ttems of activity in their vicinity.These secondary impacts are incompatible with activities�nd uses in residential areas, or near educational, recreational, and religious facilities. They also have negative impacts upon local businesses in their immediate neighborhood' When combined with additional sex oriented establishments or establishments servin� alcoholic beverages, the evidence indicates that there are additional increases in undesirable and harmful patterns of activity. i It is important to point out that secondary impacts of sex criented businesses is not a recent problem. Secondary activities asscclated with sex oriented businesses have his;oricaily included perscnal and property crimes as we!I as selic:tatien fcr prosututicn, gambling, arganiz_d c,iminai =ivity, illicit drug trarlsaC:ivns. shanghaiing/kidnaping, discrdedy c:n• duct, and cther public nuisance activities.The work o'f many munic:valities in examining the impact.of sex oriented businesses buttresses the hiscric record providing ample evidence in support cf regulation and restric•.ion of the (cc:.tion and =ncentration & trese types cf business enterprises. i i i ERGIEnvironmental Research Group ivlarch 31. 1996 ti SEP. 5.2000' ,12:54PM'""G""'^" w"4 c� rNJr% L. Vv ANid JVQ I rvc N[j.114 Mat"J�II iaU15 uN I Mt ShL:GNDARY IMPACTS OF SEXUALLY O$MTED BUSINESSES PAGE-3 ` - MAJOR POINTS 1. Sex oriented businesses provide a potential Iociis for illicit and undesirable activities by Providing a place of contact for numerous potential customers for prostitution, pandering, and other activities. 2. In combination with on-site or nearby alcoholic beverage service or other sex oriented businesses,the concentration of uses increases ft quantity of undesirable acctivities.There is a snowball effect of undesirable activities that feed upon and support each other. 3.There are a number of undesirable results of the facilitation effect upon illicit behavior. On the one hand, adjacent uses such as educational and religious institutions, or residential areas where there are numbers of children and youth are exposed to inappropriate models of behavior which they are unprepared to digest or respond effectively to. They are not old enough or mature enough to effectively decade what is appropriate behavior and these proximate uses create unhealthy influences. Where criminal activity is concerned children, the elderly, and women are especially prone to victimization in opportunistic personal crimes. A. Sex oriented business by its very presence sets a c cntext Tar interpreting pedestrians presence in the area as potentially related to the se:� oriented business. This can and has led to propositioning of passersby who have ne relatidn to the sex oriented business.Where vuinerabie populations are involved, particularly ch idren, women by themselves, the elderly, this unwanted attention makes it intirricating `cr them to be cn the street. 7nere is Scirlg to tte a strong tendency for inapercoriaze activities, to seek nearby venues. Preszituticn and other iilic;t activities will Ind lightly used and under used nesroy parks, parktrng log. garages, alleyways, and other spac_s- fcr their activities. The sex oriented businesses) does not create the activity but providies a facilitating setting fcr supporting thega activities. It provides a legitimizing reason for the presence cf individuals who have illicit intent. 6. Sex oriented businesses have a negative impact upon both residential and commercial property values within three blocks ofthe location,The preponderance of research suggests that the presence of sex oriented buslnesses is =nsidered by real estate appraisers and lenders to be evidence of community decline and decay. Other research indicates that areas with sex oriented businesses experience lower rates of appreciation in property values and/ or higher turnover in properties in comparison to ccUnpamble areas without sex oriented businesses. ERGA-wironmental Research Group Marsh 31. 1996 �Cr-. Gl'JGU' 1G'J.JrI'1• ... ..-- .. - .. . - wry.. r-.1. - I I- .�. � . .-VV ON THIS SBCONCARY IMPACTS OF SPEXUALLY CRJENTED BUSINESSES PAGE •4 HISTORJC OVERVIEW The issues of sex-oriented businesses and their effects is not something of recent vintage. Sex oriented businesses have an extensive histar�in the United States dating from at least the late eighteenth century [1]. The "tableau vivant" in theaters and the "concert saloon,' appear as forerunners Of what we know today by s6briquets such as "topless bar"or"go go bar"first appeared in the first half of the nineteenthicentury[1,pp.126-128(. Their forebears seem to have appeared for much the same reasan that the New York City Department of City Planning identified for the recent boom in topless baps. It was a response to economic pressures that effectively brought in customers, ;mostly males in their twenties, to the taverns, restaurants, and theaters of the times [2:p.171. The clientele has not changed very mudd over times in the historic record, whether you look at boomtowns (31, ccwtowns [4], frontier towns like Oenver (61 and Salt Lake City (61, or seaports [7 j the clientele has for the most part be.n young, single, transientlmebiie males. That is still true today of the clientele for"topless tears" (2,A.1al. In the nineteenth century, activities we would currently classify under szccndary impacts were overtly present*thin the establishments cf t1h0 day, In a different social. pciitical. and legal c;irnate. many of the tavems, concer, sa�ccris, and dives had active cambiinc and crocked gaming activities ranging from Renc Ladles [7,p,1111 to bear and rat-baiting. Prestituticn or sexual tease was always present. .At the one end or the scectrum, "Patrcns in 'Harry Hill's'were expeczed to buy overpriced dtks *cr the "waiter girls' cr leave if they dip not" (7,p.1111. "Obstreperous patrons were _►ed to knceXcut drops." (7,p.111] and prebabiv rotted. At the other and, ccnren saiccns often had waiter ciris whc were prostitutes: private rccros and talccries ucstairs•.vere'Jsed `cr prostitution(1,p.12Sl,Where ti,eses activities did nct relieve thecus-4,crosr, typicsily icurists, trans;ents,saiicrs.cr s,rayinC s-uzre5 cftheirwallets, 'c.imps'sCedaliced in druCging the unwary, rccbinc them of money, and then shanghaiing them Into trcats, cr just kiiling;them (7,pp.107 f;}.Arrangements were sometimes made with the police on a designated !cc=icn to dump the unc cnscicus victim where the police would pick them up in the mcminc and jail them for public irttcxicaticn. In a legal c'.imate that was for less regulated. and a Oclitical and social climate where these activities were condoned or not discussed. the preclOms were clearer and mere closely tied to the sex oriented facilities. Today, where there is a'muchh higher degree cf regulation, illicit activity has moved out ofthe facilities into less regulated public locations.This has, in its own way, made the impacts upon the-public of these establishments less c,'ear but broader in scope than was the situation in earlier times. ERGiEnvironmertal Research Group Marc'i 31, 1996 SEP. 5.2000 1 12:55PhAmMM94AN I�ZN rsR FOR LAW AND JUSTTGF NO.114 M&P.T31, 1556 'ON TH9 SECONDARY IMPACTS CF SgXUALLY CAIENTED BUSINESSES FAGS• 5 CRIMINAL AcTmTY Existing research strongly supports the existence of a relationship between the presence of one or more sex oriented businesses and elevated Part I and sex. related crime rates in the surrounding vicinity. There are studies conducted in several cities that provide strong support for the observation that crime rates are significantly higher in areas with one or more sex oriented businesses than in comparable areas without these businesses within the same municipality. McCleary and Meeker's study in Garden Grove, Caiifomia[a]and the Indianapolis study [9, pp.7-261 are two of the stronget studies. McCleary and Meeker(1991)examined 10 years worth of crime statistics and reports forthe main commercial street in Garden Grove, Califomig. Using individual crime locations they examined the incidence of crime in relation to sex oriented businesses, taverns, and ether Iocations along the boulevard. The seven sex oriented businesses along Garden Grove Eeulevard accounted for 10.5 percent of part I crimes and 25.5 percent of Part it crimes recorded for 810 addresses along the Boulevard u`at had crime reports during the 10 year period covered by the study. These 1gures have 'ess than 1 chance in a 100 of happening at raneem [8,p.23j. Sex oriented t usinesses aicr:g Garden Grove Boulevard had more 1ccatiens ranked among the top ten for crime re,"Cis than even the taverns alma the Same boulevard. i ne taverns that were ranked in the cc ten for crimes happened co be located an the same blocks as sexually oriented businesses. In acditicn, Mc:..e:r, and Meeker =rlducted statistcal analyses of crime rates before and alter 5 c::ar,ges to existing sex oriented business ;ccrticns. Ti js Inc!ude. expcnsicn cr ccenn5 of new sex oriented facilities in the imrr,2:late vicinity of an existing sste. or the epcningle:es;rg of a tavern nearby [8.pp.25-281. They compared came rates arcurd these Icc3dcns to a %:mpesite index of crime rates at :he other sex oriented business locations alcng Garden Grove 8ouievard. Three of the instances involved additicnal sex oriented businesses and two involved sex oriented businesses and tavems, In the first three instances additional or expanded sex oriented businesses led to significantly increased property(e,g„ burglary, theft auto theft) and personal c:"mes (e,g., assault, robbery)within a 1000 Feet radius of the sites. Except for one instance, and that only in relation to property crime, both personal and property c:irnes increased significantly within a 500 fact radius of the expanded or new sex oriented businesses. In 2 other situations studied by McCleary and Meeks they looked at one situation where a tavern opened near the site of a sex oriented business and another where a tavern closed near the site of a sex oriented business, In the instance where a tavern opened near the site of a sex oriented business, personal crime rose significantly within a 1000 foot radius. Property crimes also rose, though not significantly (a,p.31 j. in the second instance, a bar closed when it was located just over 1000 feet from a sex oriented business. No significant >ERMEnvironmemal Research Group March 31, 1996 StY. b.0 Jb 1C bbYlrl MMG �I�rr11'I VGA.1 QM r•VK LAW AINU JVJ I Awr- I'IV.1114 am•01 %;1 : ON THE SECONDARY !MPACT5 OF SEXUALLY OMENTEO BUSINESSES PAGE - 6 changen personal or property crime rates was noted. The authors explain this as indicating that the interaction between tavems and sex oriented businesses does not hold beyond 1000 feet between the facilities (8,p.321. The City of Indianapolis conducted comparisons between areas with one or more sex oriented businesses, with comparable control areas chosen on demographic characteris- tics, building types, and traffic levels 19,pp.7-261. This effort at matching areas makes this study particularly important. The matched areas were compared for levels of recorded criminal activity for serious (Part 1) crimes and sex-related crimes. In the study areas with sex oriented businesses, the sex-related crime rate was 46.4 crimes per 10,000 population in comparison to 26.2 per 10,000 for control areas. This is 77% percent higher for study versus control areas (9,p.1 aj. if the ratio of sex-(elated crimes had followed the ratio of serious crimes (Part 1 crimes) for the study versus control areas the study area rate should only have been 23% higher or 32.3 per 10,000 population. A strong ccrrelatien was thus established between the presence of sex oriented enterprises and criminal activity, particularly sex related crime. Other ansivses done in Indianapolis pointed cut crime related imcac-m of sex oriented businesses on residential neicM cnccads. Sex-related c:�irnes were found tc cl=lur 4 times mere frequently in neighborhoods with a residential character and a sex oriented 'business than in distrc.related commercial areas with a sex oriented business(9,p.231.This dovetails with the trade area studies done in Austin, Te%Fs f10,pp.27.3ij and rctheil. Washington [1 ,Mat that identifed the maicrity of c!ients of the sex oriented businesses studied as coming 1-rem outside the immediate neighbcncccd. Sex oriented businesses thus help to create.ccrciticns that provide outsiders with rea,c^s to be in a neichccrnccc ir;cr essing the CCtential `cr ccccrunistic crimes(12.p.21 j. "Nher1 serni-private iccscicns, cverwnicn limited individual C r.z,cl Can be exercised are alsc present, suc'1 as par<irg Icts, parks, sC:"ccl yards. and .-laygrcunds, the venues `cr opportunistic crimes are increased '12,r._3j. The Racort cf the Attorney General's Working Grzuo on the R culaticr of Sex oriented businesses(1`?89)fvrthe state of Minnesota cites a number cf supcertive studies ccnduc:ed in the Minneacciis-St. Paul metropolitan ares. T re 1980 study, by the Minneapolis Crime Prevention Center, examined sexually-oriented and ale hel-oriented adult entertainment businesses relation to several issues, including serous crime rates. Creating an index of burglary, robbery, rape, and assault (all Part 1 crimes) the 1980 study compared areas around sexually-onented businesses to otherareas in Minneapolis using simple and multiple regression statistical techniques. They found that the impact of sexually-oriented busi- nesses on the crime rate index was positive and strong regardless of the control variables used in the regression equations, either singly or simultaneously. The report estimated, cn the basis of the analyses, that the addition of one sexually-oriented business to a census tract area would produce an increase in the crime index rate of S.IS crimes per thousand residents in the tract even if all other variables remained unchanged (13,p.71. As fcr types ERGAnvironmentsl Research Group Niamn 31. 1996 5EF1. euwb_' Ie;5r(,M­q-.dAgw/ 1\ vim. 1 .IN rvr% &.ORWV r 4. 60 V VV 1 we 1'IV.11,4 INT• �I J I. 1'.7b IN i ME St(-iunOARY IMPACTS OF SE)ct1ALLY ORIE14TED BUSINESSES PAGE - 7 of Part 14 crimes, a 1987 study by the St. Paul Division of Planning reported that the police had determined that street prostitution in St. Paul clustered in an area adjacent to sexually- oriented businesses. Police statistics for 1986 indicated that 195, or 70% of prostitution arrests with identtftable locations were within this zone.All locations with ten or more arrests for street prostitution were in this zone. (13,p.111 F Another study cited by the Attorney General's report was one by the St. Paul Division of Planning and the Minnesota Crime Control Planning Board (1978). The study examined sexually-oriented and alcohoi-adented adult entertainment businesses and their relation- ship to rates of crimes per one thousand persons. Although this study lumped sexually. oriented and alcohol-oriented adult entertainment businesses tcgehter, it concluded that there were significantly greater numbers of crimes where there were 2 such businesses than where there was only one such business (13,p.BJ. The New York City Department of Planning similarly comments that, "It is significant however, that the concentration of sex. related businesses has been closely associated with substantial numbers of arrests within thcsa establishments for prostitution and obscenity." (2, p.371 Similar findings about multiple sexually-criented trusinesses were found in Austin (10, pp. 9-24J thrcugn comparisons of Part 1 and sex-related c:�me rates in areas with several versus areas with only a single sex oriented business. The study areas with several sax Oriented businesses had part 1 ezime rates 43 percent higher and sex-related came rates that were 66 percent higher than those with only one sex oriented business (10, p.241. Other comparisons between areas with sex oriented businesses and comparable control areas without suet businesses found =nsistently that study areas had levels of Par 1 and save related w,me rates per 10o0 pcpuiaticn from 2 to 7 times higher than ;heir respective control areas (10, p,.231. The C;ty cfAustin report also cites a 1977 study by the City of Lcs Angeles (10, po. 38,1 c;mparing Hollywood, which had a very high =ncsntration of sex oriented businesses, to the rest cf the city of Los Angeles, From 1969 to 19 7 5 the number of sex oriented businesses in Hellywccd rose from 11 to 68. Part 1 crimes rose by 7.6 percent in Hollywood during the same period, compared to 4.2 percent for the citywide average. Personal Part 1 crimes, where the victim is Confronted by the perpetrator, rose precipitously c:mpared to city wide averages, 93.7 versus 2_.a percent for street retteries and 5 1,4 versus 36,9 percent for purse snatc:tings. To summarize the research reviewed above it is fairto say that the similarity of findings from so many reports from different locations lends the aggregate weight of these reports to the conclusion that sex oriented businesses have a strong and positive relationship to increased crime and street crime in the areas in which they are located. The increases in Part 1 personal crimes (including assault and robbery) adds significantly to the negative impact these enterprises have upon nelghborhoods and locations with particularly vulnerable populations, including the elderly, children, and women. ERGiCnviranrnent3l We3earch Group tilar�h 3t, 1996 SEP. 5.2000 12:58PM HIJ.114 r1.1u REPORT TO THE AMERICAN CENTER FOR LAW AND JUSTICE March 31, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE-8 impact these enterprises have upon neighborhoods and locations with particularly vulner- able populations, including the elderly, children, and women. Existing research literature in the criminology, urban design, and environment and behavior fields provides supporting explanations for the findings described above and helps to understand their implications for neighborhoods. Fowler et al's[1 2J study of crime and prevention in a Hartford, CT neighborhood indicates that there is a class of spaces,in neighborhoods that can be very attractive to criminal perpetrators under the appropriate conditions, Parking lots,open spaces between buildings, parks, and similar spaces display . uncertain levels of ownership and control, or transient ownership. Sidewalks are an even more public area of uncertain ownership. It is often difficult to discern whether a person belongs or does not and the apparent right to question a person's presence is limited. (See Nir��.��"�'� ;'�`,i''�' ,. off•. :�r.:°•:�'S: 'aS FIGURE 1. TRANSIT STOP AND ADJACENT PARKING ACROSS FROM THE REAR OF "THE CLUB" SITE The presence of large, nearby parking areas that will be unused or only lightly used during the typical hours of operation for"The Club" provide a vast expanse of uncontrolled space that can facilitate illicit activity, cruising. and parking.The nearby presence of a bar adds additionai facilities that can produce undesirable secondary effects, IERG/Envrr- •'+++itm 6roup March 31, 1996 SEP. 5,E000 12:58PM IIV.11�F !'.11 REPORT TO THE AMERICAN CENTER FOR I.AW AND JUSTICE March 31, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE -9 i�"�`� '�'" s:�y;�lcg:�'t::a 1;:.'�.?S„:'>;, ;'�•,� ':P; :R'or'. ':G'> 'v..4• �:r; ��!"' e.Y,RC •wr ...,�� '�.'\ �i. "f'+ 'rl5^ :j,!. ii?s?�t:.h:,�,t�`^fE �!h:. i.M: •:'7+. .�i�`j` .''S :4<�': ,..b.'1:tL','�'.�..::::i'.,`;.":. ;'tV"r. .,k �'�."Hill ;I� '��5i r,IS,.•:I, ,.5. :y.b.`.n'�lT:��',:�.•/. ';;of .a �c;dY'rrn��':•f' :R%;i„iii;t,�Q�j:, ',�� r .;us••'!' AI,`ttvn:•. .G n r,N p:x'adi :k+w ,u::S,•" •n•. :fi�� {p;•hh yy .t S� �`.i':C ��•t'� '�tiis:/ ,•3�n•n•,� .•aiE'2+:. .�♦fl��tT,,, `',���r�„vli't: :::�� �iii i'�'Fp� <:;�::�+�.:t�':/-:. 4� (':::, .�'' :' 4}CY,;?, ;;.I<•?�s; ..J. .a�.a i',: �:N,.�'`i;4• .L.t:w�/,:a'�7. r,ty''r, ' .R'a1.'� .,,$;r '.io:. ;x,' „s a.i�y i'r';:,R;'..;iF,•>,e<. , %i'�•,.� :Vf t .,r'1't`iw'� �E .t- '�:j,.�'V :'n', a41•,sr .Yn.:lu'� .,i: ., I�� it i'a{. 4,.5: !•4,+ I;:,? :•da� �Y4. •t: „+i'�r! ;:4 j;�;"'t•'•e,...c...r ;n. ../. .�>e,> h;; .,•,�•&;r>G'� '�tiP '.+ tri:: at,yte .Y� .�4' t+M�;t',,��i;i;�i :%i`s"•i;,. ;r',v,2e:(i�,;r: .t t1'k4,5 :..'�';�!.. ^iJ„',i',, ++ ••r�� :o:M1 ,•.i; ,;�::�,. '.y',rf.;•i`;E,..s. t ,In „• •'t:r�' ;; /�. xt '�,S..T•,'1,r. r • ;t.°id�r°rr,!rr;fs,.,`;v.r,hi+S{4:PT;f. !! .�:i��. ,t i�a:s ..r..,;rir�9's51•. y 1�it �,�i:�'l•t'.. .%:).v �, ,(:� .1� ',,I^•� ''SKY; - ':br, :Ri .�,h� il:i!':.. f., '��adF.:Y`' f�i,rr .k� ..t�ii4+y,.; ','",'i `�i:.�i:` !:�'"?�'"• ,lip�i':G: r••6�.:s�4�""o<ti.�'t�.1 ':"i;;II`i.:ggti�4wA.">�i';4,nye.r', �i'i jvs: Air!:'rt' :•R�i�n:'�: ;' ,f l yr: FIGufRE 2. REAR ENTRY: "THE CLUB" SITE The availability of a rear entry to the site of this sex oriented business is through a parking lot (a semi- private space) which provides convenient access to the bar nearby. The parking lot. with its many niches and hidden spaces, provides many locations that would facilitate illicit behavior to the detriment of nearby businesses, residences, churches, and community facilities. The proximity of a bar to a sex- oriented business is an additional factor that facilitates criminal activity, ERG/Envi rotimt•wmi Research Group March 31, 1996 JLI- •J.LVVV 1L'.J�I II REPORT TO THE AMERICAN CENTER FOR LAW AND JUSTICE March 31, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE -10 Figures 1&2) Such public and semi-private spaces provide [14]places for all classes of people to gather. When there is a nucleus for illicit behavior nearby (e.g, a sex oriented business), there is a ready danger of such sites, innocent in themselves, peing taken over and used for illicit purposes. When this occurs, legitimate users and neighborhood residents are typically excluded or driven away by the illicit activity. Use of public spaces is tied to the typical level of activity in an area as well. It is said that nature abhors a vacuum, Ina similarfashion it can be understood that spaces that are lightly used for legitimate purposes are open to use for less appropriate purposes. Interviews with perpetrators indicate that street crime is frequently a questicn of opportunity rather than deliberate planning [12,p.301. Situations that provide legitimation for hanging out may significantly increase'the probability of oppartun!stic street crime. Sex oriented enterprises frequently provide that legitimation for hanging out. 7 ff"WPM Sfi i r.' FIGURE :3. STREET FACADE: "THE CLUB" SITE The recessed store fronts on either side of the site, as wen as others on this and adjacent blocKs, are available "semi-private"space over which no there ?s no control during the hours when the shops are closed, These are typical locations for potential loitering, solicitation. and other undesirable behavior during trle evening hours when "The Club" would be operstnu3. The screened facade of the "The Club" also removes any supervision of what goes on outside thq facility by those inside. ERG/Envlrntlmontal Resoorrh (Ifniip tvtarrh 31, 1996 3EP. v.2000 1:00PM N0.114 F.13 REPORT TO THE AMERICAN CLNTBR FOft LAW AND JUSTICE March 31, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE- 11 M FtGuRes 4 5. NEARey FACnJrE3: "Tme CLua" S+Ts Standing across the street from the rear cf"The Club"site in either direction one sees residential cr community faullties that will be affected by the secondary impacts of the operation cf a sex oriented business within a 500-1000 foot radius of its site. turns its face away from the street avoiding any supervision of the sidewalk immediately in Tort of it. This is frequently a problem with large modern buildings that have blank walls at the pedestrian level (141. Sex oriented businesses also provide suc:� an opaque facade because of the limited legitimate audience for their products or services (persons over 1 a or 21 years of age). The result, as rioted by the New York City Department of Planning [2, p.371 is that, "As a result, and also because the sex-estabf ishment patrons hurry in and out, the sidewalks are left unclaimed and thus availadle to those hustling and hanging out.° New Ycrk State Urban Development Corporation, Vol. 1, ,August. 1984." (See Figure 3.) Women and the elderly show higher perceived fear;;tan males and young adults in situations of unfamiliarity and also darkness [15]. Sex oriented business locations promote the presence of numbers of unfamiliar persons in that their trade area is not the local neighborhood, They typically operate primarily during the evening hours of darkness. Accompanied by other aversive ac'.ivitfes in the vicinity of a sex oriented business, as depic:ed above, the area will soon be devoid of these vulnerable populations. Women are particularly sensitive to potential threats in public spaces. They will be the fiat to avoid locations that present a perceived threat to pedestrian safety.The genderand age mix found in public places has often been used as a good general measure of the relative safety of a public space (16,p.18j. Other types of businesses in the immediate vicinity wilt then be negatively impacted by the desire of patrons and potential patrons to avoid the area[17,pp.2• 41. Additionally, where the time frames of operation overlap between sex oriented businesses and otherfacilities(e.g.,schools,churches, parks,playgrounds)there is even more potential for harm to legitimate users. Vulnerable populations that use these other facilities are exposed to the potential harm from the sewndary effects of sex oriented businesses. This can take the form of personal or property crime, harassment or propositioning of pedestrians ERG;Envirommental Research Group March 31, 1996 REQUEST FOR COUNCIL ACTION MEETING DATE: October 2, 2000 DEPARTMENT ID NUMBER: CA Analysis: In California, there is still some question regarding preemption.of criminal enforcement related to the regulating of sex oriented businesses. For example, the City of Anaheim was involved in two separate cases where "exotic" dancers successfully contended that the City could not criminally enforce regulations that overlap State law related to sexual conduct. The success of the City of Newport Beach in its civil enforcement efforts suggests that non- criminal enforcement mechanisms, such as administrative citations and civil injunctions, avoid the preemption issue while regulating the business. Alternatively, it should be noted that the Anaheim and Newport cases concerned permits issued before the State Legislature amended §§318.5 and 318.6 of the Penal Code, apparently exempting from the pre-emption provisions of city laws regulating adult or Sexually Oriented Businesses. So, while the City Attorney's office recommends modifying the sex-oriented business ordinances to provide for civil enforcement to avoid any pre-emption issue, retaining the criminal enforcement penalties in light of the Penal Code sections cited above is an option the Council should consider and would be a decision the City Attorney could defend. Other proposed amendments have been made as well. Section 5.70.030, now deletes the requirements that certain stockholders of a corporate applicant complete the Sex Oriented Business application. Relevant case law indicates that a city may require the disclosure of officers and directors of a corporation, as these individuals are responsible for the management and control of the Sex Oriented Business facility, but not of stockholders. The next change is in the hours of operation. It is recommended that the ordinance permit Sex Oriented Businesses to remain open until 2:00 a.m., instead of the current 11:00 p.m. The City Attorney's office recommends this change in light of recent case law concerning findings. A third change to the ordinance adds and defines the term "operator." Included in the new ordinance is also a definition of entertainment (performance) and a requirement of a 6 foot distance between performers and patrons while the performance is being conducted. Minor language changes have been made for the sake of clarity or, in the case of the signage requirements, because signage regulation already existed in the Zoning Ordinance. Further, it is recommended that the City Council carefully review the factual findings and adopt them in support of Chapter 5.70 and the proposed amendments to it. These findings will not be codified in the Municipal Code, but will remain on file in the City Clerk's Office for public inspection. Environmental Status: Not applicable Attachment(s): NumberCity Clerk's Page Description 1. Ordinance No. 3470 amending Huntington Beach Municipal Code Section 5.70 2. Legislative Draft of HBMC 5.70 sobrca10-00 -3- 9/22/00 3:54 PM �. � 1 ! � 3�3�3,43 _� ;. r 433 � � � 3.. ....... 3 3�3 ICI P3 ........... 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. 4" 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. 00ord/570o-900i10i2i00 1 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 AM ("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), cert. denied, 120 S.Ct. 1553, (2000); several California cases, including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993), cert. 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), cert. 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. 00ordi570o-900i1 oizioo 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.App.4th 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.AppAth 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.App.4th 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-900/10/2/00 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 (1 It' Cir. 1999); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995). 00ord/570o-900/l0/2/00 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 b a� n 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 this Chapter, "corporation" shall also include not-for-profit corporations and limited liability corporations. (g) Operator: 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 (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. 00ord/570o-900/10/2/00 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. r. (2) No person under the age of 18 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 00orai570o-900n oizioo 14 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. 00ord/570o-900/10/2/00 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: OOord/570o-900/10/2/00 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 (i) 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 00ord/570o-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-900/10/2/00 19 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; OOord/570o-900/10/2/00 20 (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. A (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: APPROVED AS TO FORM: City Clerk REVIEWED AND APPROVED: City Attorney �D INITIATED AND APPROVED: City A&inistrator City Attorney 00ord/570o-900/10/2/00 21 e 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 regular meeting thereof held on the 2"d day of October, 2000, and was again read to said City Council at a regular 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 of the 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 2000 In accordance with the City Charter of said City City Clerk and ex-officio Clerk Connie Brockway, Ci1y Clerk of the City Council of the City Deputy City Clerk of Huntington Beach, California g:/ordinanc/ord bkpg.doc 10/17/00 "• W <<�, Ordinance No. LEGISLATIVE DRAFT Chapter 5.70 Findings 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. in the City of Huntington Reaeh the following seeonilary ef��eets have 111 the till, Vl Huntington LII , been observed by the Poliee Department to have been geneFated by publie nudity; Rioting has oeenrred after females exposed their breasts before a nudity;lil 1,• Rioting IINJ Vt.t.lit IZ e Pi on Reaeh Their aetions ed the erolliil C-r$��1 �rre�es`�� �zr�rcr�ri-z«�IVlrse'XC�t�ar�riz-�rv��r and triggered mob aets of nolenee and vandalism. The-noriee department has reeeiyed eomnlaints of sexual activity in the narking lets adjaeent to an 1 V\.vl�\.11 vVlll Ulfalll lJ Vl sexual{i iil ii existing Sex Oriented Business-. legisdrft/mc570revised/9/21/00/10:13 AM 1 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. 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 and nudity in publie 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 publie nudity and 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 publie nudity a 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 legisdrft/mc570revised/9/21/00/10:13 AM 2 U.S. 5609 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); FW/PBS, Inc. v. Dallas, 493 U.S. 2159 110 S.Ct. 5969 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), cert. denied,.120 S.Ct. 1553, (2000); several.California cases, including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993), cert. 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), cent. 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 (llth Cir. 1991), cert. 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 of publie nudity 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. 24569 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. legisdrft/mc570revised/9/21/00/10:13 AM 3 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), cent. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.AppAth 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 publie nudity and 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. 8449 117 S.Ct. 23299 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 3259 329 (4th Cir. 1996), cent. 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), cent. 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 legisdrft/mc570revised/9/21/00/10:13 AM 4 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. 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 (111h Cir. 1999); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995). Iegisdrfdmc570revised/9/21/00/10:13 AM 5 Chapter 5.70 SEX ORIENTED BUSINESSES (2523-12/81, Urg. Ord. 3341-10/96, 3431-7/99) Sections: 5.70.05 Purpose 5.70.010 Definitions 5.70.015 Statements And Records 5.70.020 Permit Required 5.70.030 Application For Sex Oriented Business Permit 5.70.035 Sex Oriented Business Permit Issuance 5.70.040 Sex Oriented Performer Permit 5.70.045 Sex Oriented Performers Permit Issuance 5.70.050 Applicant To Appear 5.70.055 Repealed - Ord. 3431 - 7/99 5.70.060 Repealed - Ord. 3431 - 7/99 5.70.065 Repealed - Ord. 3431 - 7/99 5.70.070 Permit Renewal 5.70.080 Permits Nontransferable 5.70.090 Sex Oriented Businesses--Change Of Location Or Name 5.70.095 Sex Oriented Performer--Change Of Location Or Name 5.70.100 Sex Oriented Business Standards Of Operation 5.70.110 Inspections 5.70.115 Revocation of a Sex Oriented Business Permit 5.70.120 Revocation of a Sex Oriented Performer Permit 5.70.130 Regulations Nonexclusive 5.70.140 Violation--Penalty 5.70.150 Unlawful Operation Declared Nuisance 5.70.160 Minors And Intoxicated Persons 5.70.170 Employment Of Persons Without Permits Unlawful 5.70.180 Severability 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 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. (Urg. 3341-10/96) legisdrft/mc570revised/9/21/00/10:13 AM 6 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. (Urg. 3341- 10/96) -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. (Urg. 3341-10/96) 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. (Urg. 3341-10/96, 3431-7/99) (b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee. (Urg. 3341-10/96) (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). (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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." legisdrft/mc570revised/9/21/00/10:13 AM 7 te}(f) Ow of er Permit holder or Permittee. " ", "Permit holder" or "Permittee" means any shall refer to the person or entity to whom the permit is issued and shall include, but not be necessarily limited to the following: (Urg. 3341-10/96, 3431-7/99) (i)(1) the sole proprietor of a Sex Oriented Business; or (Urg. 3341-10/96, 3431- 7/99) (47(2) and all individuals owning a twenty pereons (200) o eate eqyu tablo .44 -oar eludingany eemmuntty prepeFty interest, n the- Sex111LV1 VJL, II1VI � Sex Oriente Busin (Urg. 3341-10/96, 3431-7/99) the partnership owning a Sex Oriented Business, and each of the partners; or LI1V per-son designated by the offieer-s of a eer-per-ation to be the Pemiit holder- for- a Cox Oriented Business owned ,,,a ,to l by the eer-per-at . the corporation owning a Sex Oriented Business and each of its officers and directors, but not individual shareholders. For purposes of this Chapter, "corporation" shall also include not-for-profit corporations and limited liability corporations. (Urg. 3341-10/96, 3431-7/99) (g) Operator: 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. (4)(h) Performer. "Performer" means any person who dances, models, efitef4ains 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 unc loth ed.(3431-7/99) {g}(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 legisdrft/mc570revised/9/21/00/10:13 AM 8 period, shall to the extent permitted by law be deemed to be a regular and substantial course ofconduct.(Urg. 3341-10/96, 3431-7/99) (h)0) 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. (Urg. 3341-10/96, 3431-7/99) (O(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. (Urg. 3341- 10/96, 3431-7/99) 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 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: (Urg. 3341-10/96, 3431-7/99) 04(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 (Urg. 3341-10/96, 3431- 7/99) (4)(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 legisdrft/mc570revised/9/21/00/10:13 AM 9 to the extent permitted by law be deemed to be a regular and substantial course of conduct. (Urg. 3341-10/96, 3431-7/99) (ii)(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. (Urg. 3341-10/96, 3431-7/99) (k)(m)Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel" means a hotel or motel, which (Urg. 3341-10/96, 3431-7/99) 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 (Urg. 3341-10/96, 3431-7/99) (4)(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." (Urg. 3341-10/96, 3431-7/99) (l)(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. (Urg. 3341-10/96, 3431-7/99) (m)(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. (Urg. 3341-10/96, 3431-7/99) (O(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. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570revised/9/21/00/10:13 AM 10 (�)(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, projectors 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. (Urg. 3341-10/96, 3431-7/99) (p)(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. (Urg. 3341-10/96, 3431-7/99) W(s) Specified sexual activities. "Specified sexual activities" means any of the following: (Urg. 3341-10/96, 3431-7/99) (1) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, stimulation of tinelethed genitals 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. (Urg. 3341-10/96) (2) Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; (Urg. 3341-10/96) (3) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or (Urg. 3341-10/96) (4) Actual or simulated EPondling, erotic or sexually touching of human genitals, pubic region, buttocks, cleft of the buttocks, female breast; or anal region. (Urg. 3341-10/96) (5) Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or (Urg. 3341-10/96) (6) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or (Urg. 3341-10/96) legisdrft/mc570revised/9/21/00/10:13 AM 1 1 (7) Human excretion, urination, menstruation, vaginal or anal irrigation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (r)(t) Specified anatomical areas. "Specified anatomical areas" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96) (2) Human male genitalia in a discernibly turgid state, even if completely and opaquely covered. (Urg. 3341-10/96) (3) Any device, costume, or covering that simulates any of the body parts included in subdivisions (1) and (2) above. (Urg. 3341- 10/96) 5.70.015 Statements and records. Person(s) required to obtain a Sex Oriented Business Permit shall maintain complete records which can be segregated with regard to all transactions involving such products, merchandise, services or entertainment which are sufficient to establish the percentage of gross receipts of the business which is derived from such transactions. (Urg. . 3341-10/96, 3431-7/99) Such records shall be maintained for aperiod of at least three (3) years. (Urg. 3341-10/96) 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. (Urg. 3341-10/96) 5.70.020 Permit required. (a) No person, association, partnership or corporation shall 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 Permit and a business license from the City of Huntington Beach. (Urg. 3341-10/96, 3431-7/99) (b) To obtain a permit to own, operate, engage in, conduct or carry on any Sex Oriented Business, the Owner 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 paid to the City to defray, in part, the cost of investigation and report required by this chapter. The receipt, or a copy legisdr t/mc570revised/9/21/00/10:13 AM 12 thereof, shall be supplied to the Chief of Police at the time such application is submitted. (Urg. 3341-10/96, 3431-7/99) (c) The application for Permit does not authorize the engaging in, operation of, conducting of, or carrying on of any Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (d) Only the Owner of the Sex Oriented Business is eligible to obtain a Sex Oriented Business Permit. (Urg. 3341-10/96, 3431-7/99) (e) The Owner shall post the Permit conspicuously in the Sex Oriented Business Premises. (Urg. 3341-10/96, 3431-7/99) (f) The fact that an Owner has other types of state or City permits or licenses does not exempt the Owner from the requirement of obtaining a Sex Oriented Business Permit. (3431-7/99) 5.70.030 Application for-Sex Oriented-Business Permit.Each application for a.Sex Oriented Business permit shall contain the following information: (Urg. 3341-10/96) (a) Owner Information (Urg. 3341-10/96, 3431-7/99) (1) The full, true name and any other names, including aliases, used by the applicant. (Urg. 3341-10/96) (2) _.The present business address and telephone number of the applicant. (Urg. 3341-10/96, 3431-7/99) (3) Acceptable written proof that the applicant is at least eighteen (IS) years of age. (Urg. 3341-10/96, 3431-7/99) (4) The social security number and state driver's license-or identification card of the applicant. (3431-7/99) (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. (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570revised/9/21/00/10:13 AM 13 (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, 2661, 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. (Urg. 3341-10/96, 3431- 7/99) (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, and ea eh 1 h lde-holds mor-e than twenty UI1..I VUVII JI.VViQIQ1CT perveNt (200) f the steek ;n the nt; ,N eludiN COMMURIty all `L.v�V� , ' pr-epeAy interests-. 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. All individuals owning n twenty per-ee t (20%) onto,- e „table interest eluding N;+..N,-.,No,-t.. �c.v i V� vi bla.uwl , ' - .. interests i the Sex Oriente Business shall eemplete an s all IIII VIVJIJ 111 I.IIV VVA VIIVfICL uYNIie UdI oI forms req r-e of an individual n Nl ,a t under-this ehn t , but only one Nlie do fee shall be ehar-ge,l. (Urg. 3341-10/96, 3431- 7/99) (b) Business Information (Urg. 3341-10/96) (1) The name and address of the owner and lessor of the real property upon which the business is to be conducted. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) legisdrft/mc570revised/9/21/00/10:13 AM 14 (3) The address to which notice of action on the application is to be mailed. (Urg. 3341-10/96) (4) The name(s) of the responsible person(s) 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). (3431-7/99) (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. (Urg. 3341-10/96, 343.1-7/99) (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.035 Sex Oriented Business Permit Issuance. (Urg. 3341-10/96,.3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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. 5.70.040 Sex Oriented Performer Permit (Urg. 3341-10/96, 3431-7/99) (a) Ne pefsen shall engage i ite in am),live per-fen:nanee depicting speeified anatemieal 1ving specified sexual aetivities without a valid Se�E Oriented Per€efmer-Pe1-mit issued bythe Cit (IIr„ 3341_10/96 3431_7igg)Al1performers, 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 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. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570revised/9/21/00/10:13 AM 15 (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. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (f) The completed application shall contain the following information and be accompanied by the following documents: (Urg. 3341-10/96, 3431-7/99) (1) The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant; (Urg. 3341-10/96) (2) The applicant's height, weight, hair and eye color and date and place of birth; (Urg. 3341=10/96,-3431-7/99) (3) Present residence address and telephone number; (Urg. 3341- 10/96, 3431-7/99) (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, 2661, . 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. (Urg. 3341-10/96, 3431-7/99) (5) The social security number and state driver's license or identification number of the applicant. (Urg. 3341-10/96, 3431- 7/99) (6) Acceptable written proof that the applicant is at least eighteen (18) years of age; (Urg. 3341-10/96,.3431-7/99) (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; (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570revised/9/21/00/10:13 AM 16 (8) The business address and telephone number where the performance will take place. (3431-7/99) (9) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.045 Sex Oriented Performers Permit Issuance. (Urg. 3341-10/96, 3431-7/99) Within ten (10) business days of receipt of a completed application, as set forth in Section 5.70.040 and payment of the applicable fees, the Chief of Police shall issue a Sex Oriented Performers Permit. However,issuance of the permit does not preclude revocation of the permit pursuant to Section 5.70.126. (Urg. 3341-10/96, 3431-7/99) 5.70.050 Applicant to appear. The applicant for a Sex Oriented Business Pen-nit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (Urg. 3341-10/96, 3431-7/99) 5.70.070 Permit renewal. Each Sex Oriented Business Permit and Sex Oriented Perfonners Permit shall expire one (1) year from the date of issuance. The applicant shall make application for renewal to the Chief of Police on a form provided by the Chief of Police accompanied by the renewal fee and a copy of the Permit to be renewed. 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. (Urg. 3341- 10/96, 3431-7/99) If the application confonns-to the previously,approved application and the.Sex Oriented Business has not changed, the pen-nit shall be renewed by the Chief of Police for another year. Notice of such renewal shall be given, in writing, to the pennittee within ten (10)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 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. (Urg. 3341-10/96, 3431-7/99) The applicant for renewal of a Sex Oriented Business Permit or a Sex Oriented Performers Pen-nit shall personally appear during normal business hours 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. (3431-7/99) 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 legisdrft/mc570revised/9/21/00/10:13 AM 17 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.m.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. eithe any ,,diyi,1,,.,1 ,,,he „ sly oxA,nedloss tl,a twenty pe-eent (200) if th-e V VlIJVlLLGI VII VI IJ GGI GIle aequir-es at least . the tie sold, wl f*t,ansfef ferl o oor the ; v a..of .�mit GIIV , o steek auther-ized but not issued at the time of the g+anting of a pefmit is thereafte issued and sold, *ra„sf fr-e o ed. (Urg. 3341-10/96, 3431-7/99) 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. (Urg..3341-10/96) (b) No Sex.Oriented Business Performer permit may be sold, transferred or assigned to any other person or persons. (3431-7/99) 5.70.090 Sex Oriented Businesses -- Change of location or name. (Urg. 3341-10/96) (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 city, and approval has been obtained from the Chief of Police. Such approval shall not be given unless all requirements and regulations,:as,provided herein for applications for permits, have been met. (Urg. 3341-10/96, 3431-7/99) (b) No permit holder shall operate, conduct, manage, engage in, or carry on a Sex Oriented Business under any name other than his name and the name of the business as specified on the applicable permit. (Urg. 3341-10/96, 3431-7/99) (c) Any application for an extension or expansion of a building or other place of business where a Sex Oriented Business is located shall require inspection and shall comply with the provisions and regulations of this Chapter. (Urg. 3341-10/96) 5.70.095 Sex Oriented Performer--Change of location or name. No permit holder shall perform under any name other than the name specified on his or her permit in any other location other than the location specified on his or her permit. (3431-7/99) 5.70.100 Sex Oriented Business Standards of Operation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) legisdrft/mc570revised/9/21/00/10:13 AM 18 (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. (Urg. 3341-10/96) (2) All indoor areas-of the Sex Oriented Business within which patrons are permitted,.exceptrestrooms, shall be open to view at all times. (Urg. 3341-10/96) (2). zCTigffiage shall . .,f....,, to the standards of the 14u tingt,-.., Bo.,e . ZVlllllg CL1It1 Subdivision Ofdinanee Code exeept that stieh signs L.hall „tai ,, phot..`..-..ph sill ettettes �l,-.,.,,ings st.,t„o. .J11U11 VVLI CCLIII , , , , represent.,tions .,l.,�l. lor., t tl,o 1,,,,,, ,,, 1., l., 1 anatomy, of ' ,moo:tlA„ 'hereef, whether-elothed o eletl,e.1, i elll,aing� 11thet t l./Vl CI VII LLIVIV ii.mit-ati6n esenta4iens that depict "speeified ., .,t.,,,,iea areas" (b) General Provisions (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) No person under the age of 18 years shall be permitted within the premises at any time except as pursuant to California Penal Code Section 313.2. (Urg. 3341-10/96, 3431-7/99) (3) The Sex Oriented Business shall not operate or be open between the hours of 11 p.m. 2:00 a.m. and 11:00 a.m. (Urg. 3341-10/96) (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 Iegisdrfdmc570revised/9/21/00/10:13 AM 19 which does not provide restroom facilities to its patrons or the general public. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) legisdrft/mc570revised/9/21/00/10:13 AM 20 (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. (Urg. 3341-10/96) (d) The following additional regulations shall pertain to Sex Oriented Motion Picture Arcades which provide more than one viewing area: (Urg. 3341-10/96) (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 waive the foregoing diagram for renewal applications if the Owner adopts a diagram thatwas previously,submitted and certifies that the configuration of the premises has not been altered since it was prepared. (Urg..3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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 legisdrft/mc570revised/9/21/00/10:13 AM 21 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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. (Urg..334.1 m.10/96,.343.1-. _... .. _ . . 7/99) (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. (Urg. 3341-10/96, 3431-7/99) (e) The following additional requirements shall pertain to Sex Oriented Businesses providing live entertainment. r-evealing of depieting c eifiea A„ to al Partor- 1. Speeified Sexual Aetiy; (Urg. 3341-10/96) (1) No person shall perform, and no owner, operator, or manager of a Sex Oriented Business shall permit live entertainment re= .. depi .ting Speeifiea A,,atof...ieal for patrons of a Sex Oriented Business except where: (Urg. 3341-10/96) (1) if unclothed performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570revised/9/21/00/10:13 AM 22 (ii) whether clothed or unclothed, a distance of at least six (6) feet is maintained between any performer and any patron. (Urg. 3341-10/96, 3431- 7/99) (2) The Sex Oriented Business shall provide separate dressing room facilities for performers which are exclusively dedicated to the entertainers' use. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 5.70.110 Inspections. (Urg. 3341-10/96, 3431-7/99) The permit holder shall allow the City of Huntington Beach and its 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. (Urg. 3341-10/96, 3431-7/99) 5.70.115 Revocation of a Sex Oriented Business Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Business Permit when: (Urg. 3341- 10/96, 3431-7/99) legisdrft/mc570revised/9/21/00/10:13 AM 23 (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 (Urg. 3341- 10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (4) The Sex Oriented Business has been operated in violation of any of the requirements of this Chapter-the Huntington Beach Municipal Code and if(Urg. 3341-10/96, 3431-7/99) (i) if-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 (Urg. 3341-10/96) (ii) Wthe 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 legisdrft/mc570revised/9/21/00/10:13 AM 24 provisions of this Chapte the Huntington Beach Municipal Code occur(regardless of whether notice of each individual violation is given to Owner) within any twelve (12) month period; or (Urg. 3341-10/96, 3431-7/99) (5) The applicant has made material misrepresentations or fraudulent, false, or misleading statements in the application; or(3431-7/99) (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 (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 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. (3431-7/99) 5.70.120 Revocation of a Sex Oriented Performer Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Performer Permit when: (3431-7/99) (1) The applicant has made material misrepresentations or false or misleading statements in the application; or (343177/99) legisdrfft/mc570revised/9/21/00/10:13 AM 25 (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 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 (3431-7/99) (3) The Sex Oriented Performer has violated the requirements of this Chapter the Huntington Beach Municipal Code; or (3431-7/99) (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 five (5)one (1) year prior to the date of application. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) 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. (Urg. 3341-10/96) 5.70.140 Violation--Penalty. Any pefsefi vielating the provisions violation of this chapter shall be guilty of a NGc>1>:r,r>~A N4D , punishable by: a fine of five hundr-ed dollars iecnmor-by .'.'.'.t ..........„t i .the .. u„tj juil for u period not to exccca�i� (6) irnitrs or b both Tccn fin e- and legisdrft/mc570revised/9/21/00/10:13 AM 26 (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; (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. 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 Gity AR i addition to in lie of b a..r...,...a, aet..,n aivivuiiuvi, vvi„mvnvciriracrroir or-uccrorro, prvccccrrrrg-vt C's for-abatement, r-emoval or-enjoinment thereof, in the manner-pr-ovided by . He sueh other- steps and shall apply to stieh coufl of eouAs as may have jur-isdietion to gfant such relief as will abate of!r-emove stieh Sex Oriented Business and ftstr-ain and enjoin an 1,e.,,e,. ft..,., :t......�,.,g, ee,.......t.,,g vi maintaining zr Sex Oriented Business rC-vircraf:y to the p e�tisre rs of this ehapt 5.70.160 Minors and Intoxicated Persons. (Urg. 3341-10/96) (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 except as pursuant to California Penal Code Section 313.2. A sign giving notice of this provision shall be prominently posted at each entrance to the premises of the Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) legisdrft/mc570revised/9/21/00/10:13 AM 27 (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. (Urg. 3341-10/96) 5.70.170 Employment of Persons Without Permits Unlawful. (a) 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 Performer Permit. (Urg. 3341-10/96, 3431-7/99) (b) The owner, operator, manager or permittee in charge of or in control of the Sex Oriented Business which provides live entertainment shall provide proof of a valid Sex Oriented Performer Permit for each individual engaged in live performance upon demand of a police officer. Failure to provide proof is a violation of this chapter. (3431-7/99) 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. (Urg. 3341-10/96) legisdrft/mc570revised/9/21/00/10:13 AM 28 H. B. INDEPENDENT PUBLISH DATE: 10-26-00 CITY OF HUNTINGTON BEACH LEGAL NOTICE ORDINANCE NO. 3470 Adopted by the City Council on 10-16-00 "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" SYNOPSIS: Ordinance No. 3470 amends Chapter 5.70 of the Huntington Beach Municipal Code relating to sex oriented businesses. Amendments include changes to the existing Sex Oriented Businesses (SOB) ordinance to expand the hours of operation, make minor language changes for the purpose of clarity, add definitions for the purpose of clarity, and require a six (6) foot radius between performers and patrons; limiting enforcement of sex oriented business regulations to civil remedies, clarifying permitted conduct of performers and adopting findings which support the existing ordinance and the ordinance as amended. THE FULL TEXT OF THE ORDINANCE IS AVAILABLE IN THE CITY CLERK'S OFFICE. ADOPTED by the City Council of the City of Huntington Beach at a regular meeting held October 16, 2000, by the following roll call vote: AYES: Harman, Garofalo, Green, Bauer NOES: Julien, Sullivan, Dettloff ABSENT: None This ordinance is effective 30 days from date of adoption. CITY OF HUNTINGTON BEACH 2000 MAIN STREET HUNTINGTON BEACH, CA 92647 714-536-5227 CONNIE BROCKWAY, CITY CLERK g:\synopsis\Syn3470 RCA ROUTING SHEET INITIATING DEPARTMENT: City Attorney SUBJECT: Modification of Sex Oriented Business Regulations and Findings COUNCIL MEETING DATE: October 2, 2000 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FOR RDED Administrative Staff2 Assistant City Administrator Initial City Administrator Initial �.� City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: Space . Only) RCA Author: CITY OF HUNTINGTON.BEACH MEETING DATE: September 5, 2000 DEPARTMENT ID NUMBER: CA Council/Agency Meeting Held: Deferred/Continued to: Approved ❑ Conditionally Approved ❑ Denied o W City Cl rk' Signature 1tA1V7.0AM* OF OP 0Council Meeting Date: September 5, 2000 Department ID Number: CA Cv ,N o o - - AIW) CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION a SUBMITTED TO: HQNORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: AIL HUTTON, CITY ATTORNEY and , Y SILVERj-06 , City Administrator liL ' N PREPARED BY: GAL HUTTON, CITY ATTORNEY SUBJECT: Modification of Sex Oriented Business Regulations and Findings Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Should the City enforce all sex oriented business (SOB) regulations civilly, make changes to the existing SOB ordinance to expand the hours of operation, make language changes for the purpose of clarity, add definitions for the purpose of clarity, and require a 6 foot radius between performers and patrons, and should the City adopt additional findings in support of the existing sex oriented business ordinance and the amendments to it? Funding Source: Not applicable. Recommended Action: Approve introduction of Ordinance No. 3470 amending Huntington Beach Municipal Code Chapter 5.70 limiting enforcement of sex oriented business regulations to civil remedies, expanding the hours of operation, making minor language changes, clarifying permitted conduct of performers and adopting findings which support the existing ordinance and the ordinance as amended. Alternative Action(s): Do not adopt Ordinance No. 3470 and do not adopt findings. r sobrca9700 -2- 8/24/00 12:05 PM REQUEST FOR COUNCIL ACTION MEETING DATE: September 5, 2000 DEPARTMENT ID NUMBER: CA Analysis: In California, there is still some question regarding preemption of criminal enforcement related to the regulating of sex oriented businesses. For example, the City of Anaheim was involved in two separate cases where "exotic" dancers successfully contended that the City could not criminally enforce regulations that overlap State law related to sexual conduct. The success of the City of Newport Beach in its civil enforcement efforts suggests that non- criminal enforcement mechanisms, such as administrative citations and civil injunctions, avoid the preemption issue while regulating the business. Alternatively, it should be noted that the Anaheim and Newport cases concerned permits issued before the State Legislature amended §§318.5 and 318.6 of the Penal Code, apparently exempting from the pre-emption provisions of city laws regulating adult or Sexually Oriented Businesses. So, while the City Attorney's office recommends modifying the sex-oriented business ordinances to provide for civil enforcement to avoid any pre-emption issue, retaining the criminal enforcement penalties in light of the Penal Code sections cited above is an option the Council should consider and would be a decision the City Attorney could defend. Other proposed amendments have been made as well. Section 5.70.030, now deletes the requirements that certain stockholders of a corporate applicant complete the Sex Oriented Business application. Relevant case law indicates that a city may require the disclosure of officers and directors of a corporation, as these individuals are responsible for the management and control of the Sex Oriented Business facility, but not of stockholders. The next change is in the hours of operation. It is recommended that the ordinance permit Sex Oriented Businesses to remain open until 2:00 a.m., instead of the current 11:00 p.m. The City Attorney's office recommends this change in light of recent case law concerning findings. A third change to the ordinance adds and defines the term "operator." Included in the new ordinance is also a definition of entertainment (performance) and a requirement of a 6 foot distance between performers and patrons while the performance is being conducted. Minor language changes have been made for the sake of clarity or, in the case of the signage requirements, because signage regulation already existed in the Zoning Ordinance. Further, it is recommended that the City Council carefully review the factual findings and adopt them in support of Chapter 5.70 and the proposed amendments to it. These findings will not be codified in the Municipal Code, but will remain on file in the City Clerk's Office for public inspection. Environmental Status: Not applicable Attachment(s): City Clerk's Page Number No. Description 1. Ordinance No. 3470 amending Huntington Beach Municipal Code Section 5.70 2. Legislative Draft of HBMC 5.70 sobrca9700 -3- 8124/00 12:05 PM ATTACHMENT # 1 ORDINANCE NO. 33, \N ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMEND&,G CHAPTER 5.70 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO THE REGULATION OF SEX ORIENTED BUSINESSES The City Counc\I f the Cityof Huntington Beach does hereby ordain as follows: g Y SECTION 1. FmdingsThe 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 legllative notice ofthe 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 parkinglots], 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,�ie 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 DevelMetropolitan mnt Services (1986); Oklahoma City, Oklahoma(1986); Indianapolis, Indiana, Department 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. In the City of Huntington Beach, the following secondary effects have been�bserved by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. The police department has received complaints of sexual activity in the parking lots adjacent to an existing Sex Oriented Business. 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. 0 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 OOord/570o-900/8/24/00 1 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. T City Council also takes notice of the experiences of the City of Anaheim, California, with adult b sinesses in that City. The City of Anaheim has informed Huntington Beach about these experie ces, which demonstrate that sex oriented use businesses and nudity in public 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 sexuallontacts 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 p legal principles g p relating to the regulation of public nudity and 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 public nudity and 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,�lnc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545\(9th Cir. 1998), cert. denied, 120 S.Ct. 1553, (2000); several California cases, including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener,3 CalAth 832 (1993), cert. 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. W64 (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'1,23 (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 (1 lth 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 OOord/570o-900/8/24/00 2 effects of the conduct described therein and that the circumstances of these cases has relevance to the experience of Huntington Beach. N Tliie City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity 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. 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.App.4th 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,,iinn 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.AppAth 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 public nudity and 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 ih,e Internet and its availability as an alternative avenue of communication. The City Council als .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), cent. 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 OOord/570o-900/8/24/00 3 unlimited dditional source of sex-oriented sexual materials available to interested persons in every com unity with a mere keystroke. A sex-oriented business no longer has to be "actually" physically loc t d in a city to be available in the community. It is not th�ntent of the City Council in enacting this Ordinance or any provision thereof to condone or legitirrti e the distribution of obscene material, and the City and its Council recognize that State law�pr ohibits 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 do\nontend to regulate in any area preempted by California law, including but not limited to, regulation of obscene speech. Nothingin this Ordinance is intended to authorize legalize, or permit the establishment g operation, or maintenance of any business, building, or use which violates any City ordinance or any statute of the State of California regarding ublic nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful utter, or the exhibition or public display thereof. The City Council has also determined that a ,losing hours requirement promotes the . q reduction of deleterious secondary effects from sex-oriented facilities and reasonably relies on prior court decisions on the need for closing hours inclia\*ding 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 (1 lt" Cir. 1999); and City of Co ,rado Springs v. 2354Inc., 896 P.2d 272 (1995). 00ord/570o-900/8/24/00 4 SECTION 2. Section 5.70.010 of the Huntington Beach Municipal Code is hereby amended' o read as follows: 5.70.010 Defi itions. (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 o or 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 efer to the dominant or essential theme of the object described by such phrase. For in ance, when the phrase refers to films "which are distinguished or characterized by an\�mphasis upon" the depiction or description of specified sexual activities or specified\anatomical areas, the films so described are those whose dominant or predominant charactq 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 stu Jo" 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 theyperson 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 OOord/570o-900/8/24/00 5 this Chapter, "corporation" shall also include not-for-profit corporations and limited liability corporations. (g) Operator: 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 tim�!s 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 businesPerformer 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. (1) Regularly Features. "Regularl`y�features" with respect to a Sex Oriented theater or Sex Oriented cabaret means a regulariand 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 ov9perates 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 OOord/570o-900/8/24/00 6 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 can any Sex Oriented Business where one or more of the following conditions exist: (1) Th\area(s) devoted to the display of sex oriented merchandise and/onsex oriented material exceeds twenty-five (25%)percent of the totaNtock, inventory, interior business display or floor space, total display area of the business; or 2 A business or concern which resents an type of live ( ) p YYp 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)\�ay 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 Vvenue 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 t`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. 00ord/570o-900/8/24/00 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�ermitted or invited wherein coin or slug operated or electronically, electrically or in controlled still or motion picture machines, projectors 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) orpore persons regularly used for presenting material distinguished or characterizedvby 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, fellatiX,, 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, 4 coitus, or masturbation; or �a 1� OOord/570o-900/8/24/00 8 (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 A thh an animal by a human being; or (7) Human.excretion, urination, menstruation, vaginal or anal irrigation; or g (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. r t i OOord/570o-900/8/24/00 9 (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. lb) If the applicant intends tooperate 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 felon convictions 6fthe applicant within the last five 5 years; all Y � pP ( ) misdemeanor convictions within the last two (2) years of the applicant of any of the offenses set fortli 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,he 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 agentgand 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 tQ 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 C1erk\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. OOord/570o-900/8/24/00 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 \(3) The owners and lessors of the Sex Oriented Business site. address to which notice of action on the application is to be led. (4) The\name(s) of the responsible person(s) 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 mcludmg floor plan, building elevations and parking lot diagram showing the interior and exterior configuration of the premises, including'satement of the total floor area occupied by the Sex Oriented Business. O (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. SECTION 4. Section 5.70.035 of the HIluntington 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. N (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 they 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 OOord/570o-900/8/24/00 1 1 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 roof of a valid p P Sex Oriented,Performer Permit upon demand of a police officer. Failure to provide proof shall be a violations of this Chapter. e The fact that an a licant possesses other types of state or city ermits or licenses does ( ) pp � p Yp Yp 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 an an other names (including "stage names" and aliases) used by the pplicant; (2) The applicant's height, weight, hair \eyeolor and date and place of birth; (3) Present residence address and telephone num,er; (4) All felony convictions of the applicant within the ast five (5) years; all misdemeanor convictions within the last tt o (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, 2661, 647(a), 647(b), and 647(d) of the California Penal Code aehose 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; l (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; OOord/570o-900/8/24/00 12 (8) The business address and telephone number where the performance will take place: "�'�% 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\�t�o 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, shah 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 changeein 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. 00ord/570o-900i8i24i00 13 (b) General Provisions (l�) 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 except as pursuant to California Penal Code Section 343.2. 3 The Sex Oriented Business shall not operate or be open between the ( ) p p hours of 2:00 a.m. and 11:00 a.m. (4) The Sex Oriented Bus\ess 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 videp 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. e (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: 4� (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 OOord/570o-900/8/24/00 14 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 oNtthe 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) squareAet 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 OOord/570o-900/8/24/00 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 p`pared. `•, (2) No alteration in the configuration or location of a manager's station('s) maybe 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\�iew from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding rest ooms. If the premises has two (2) or more manager's stations designated, then the interior of the premises shall be configured in suci�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 e 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 th premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to this �r subsection. (6) No Individual Viewing Area may be occupied by more than on\and person at any one time. "Individual Viewing Area" shall mean viewing area designed for occupancy by one person. Individual Viewing Areas of the Sex Oriented Business shall be operated maintained without any hole or other opening or means of direcommunication or visual or physical access between the interio 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-900/8/24/00 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 erform, and no owner, operator, or manager of a p p g Sex OrientedBusiness 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 1 (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. X (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: 00orai570o-900i8i24i00 17 5.70.115 Revocation of a Sex Oriented Business Permit. (a) The hief of Police shall revoke a Sex Oriented Business Permit when: (1) The permit holder is convicted of a felony or misdemeanor occurring upon�r 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 allowe�dor 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 . 4t (i) 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 OOord/570o-900/8/24/00 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 holde.has had a Sex Oriented Business permit or other similar license or pen-nit 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, hi."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 holderrfiles 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. y 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 1 OOord/570o-900/8/24/00 19 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, 2611J, 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 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 notices 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 P 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; OOord/570o-900/8/24/00 20 (b) Civil Action. The City Attorney may institute an action in any court of competent urisdiction, including an action to abate a nuisance, to restrain, enjoin, or abate the �cb dition(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, t\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. An Sex Oriented Business operated, conducted y r 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 shalllbbecome 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 day of �°`� , 2000. \Mayor ATTEST: APPROVED AS TO FORM: City Clerk Attorney REVIEWED AND APPROVED: w INITIATED AND APPROVED: #ityministrator Zoo QdCity Attorney -V .4 OOord/570o-900/8/24/00 21 ATTACHMENT #2 Ordinance No. LEGISLATIVE DRAFT Chapter 5.70 Findings 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. In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. The police department has received complaints of sexual activity in the parking lots adjacent to an existing Sex Oriented Business. 1egisdrft/mc570/8/24/00/12:15 PM 1 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. 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 and nudity in public 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 public nudity and 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 public nudity and sex-oriented businesses, including but not limited to: City of Erie v. Pap's A.M. ("Kandyland'g, 120 S.Ct. 1382 (2000); Barnes v. Glenn Theater, 501 1egisdrft/mc570/8/24/00/11:29 AM 2 U.S. 5609 111 S.Ct. 24569 115 L.Ed.2d 504 (1991); FW/PBS, Inc. v. Dallas, 493 U.S. 2159 110 S.Ct. 5969 107 L.Ed.2d 603 (1990); City of Renton v. Playtime Theatres, 475 U.S. 419 106 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), cent. denied 511 U.S. 1030 (1994); Key, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied, 120 S.Ct. 15539 (2000); several California cases, including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener, 3 CalAth 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), cent. 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 (llth Cir. 1991), cert. 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 of public nudity 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. 24569 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. 1889 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. 1egisdrft/mc570/8/24/00/11:29 AM 3 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), cent. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.AppAth 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 public nudity and 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 3259 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), cent. 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 1egisdrft/mc570/8/24/00/11:29 AM 4 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. 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 (llth Cir. 1999); and City of Colorado Springs v. 2354Inc., 896 P.2d 272 (1995). legisdrft/mc570/8/24/00/11:29 AM 5 Chapter 5.70 SEX ORIENTED BUSINESSES (2523-12/81, Urg. Ord. 3341-10/96, 3431-7/99) Sections: 5.70.05 Purpose 5.70.010 Definitions 5.70.015 Statements And Records 5.70.020 Permit Required 5.70.030 Application For Sex Oriented Business Permit 5.70.035 Sex Oriented Business Permit Issuance 5.70.040 Sex Oriented Performer Permit 5.70.045 Sex Oriented Performers Permit Issuance 5.70.050 Applicant To Appear 5.70.055 Repealed - Ord. 3431 - 7/99 5.70.060 Repealed - Ord. 3431 - 7/99 5.70.065 Repealed - Ord. 3431 - 7/99 5.70.070 Permit Renewal 5.70.080 Permits Nontransferable 5.70.090 Sex Oriented Businesses--Change Of Location Or Name 5.70.095 Sex Oriented Performer--Change Of Location Or Name 5.70.100.Sex Oriented Business Standards Of Operation 5.70.110 Inspections 5.70.115 Revocation of a Sex Oriented Business Permit 5.70.120 Revocation of a Sex Oriented Performer Permit 5.70.130 Regulations Nonexclusive 5.70.140 Violation--Penalty 5.70.150 Unlawful Operation Declared Nuisance 5.70.160 Minors And Intoxicated Persons 5.70.170 Employment Of Persons Without Permits Unlawful 5.70.180 Severability 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 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. (Urg. 3341-10/96) legisdrft/mc570/8/24/00/11:29 AM 6 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. (Urg. 3341- 10/96) 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. (Urg. 3341-10/96) 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. (Urg. 3341-10/96, 3431-7/99) (b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee. (Urg. 3341-10/96) (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). (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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." legisdrft/mc570/8/24/00/12:18 PM 7 {�( 9wi}er er Permit holder or Permittee. nn �" n, Permit holder" "or Permittee" n� of the fellewi*g shall refer to the person or entity to whom the permit is issued and shall include, but not be necessarily limited to the following: (Urg. 3341-10/96, 3431-7/99) (i)(1) the sole proprietor of a Sex Oriented Business; or (Urg. 3341-10/96, 3431- 7/99) (�i)(2) ° Sex Oriented Busin (Urg. 3341-10/96, 3431-7/99) the partnership owning a Sex Oriented Business, and each of the partners; or (iii)(3) the per-son designated by the officers of a eer-pemtien to be the Permit holder-fer-a Sex Oriented Business owned and operated by the eefper-atien. the corporation owning a Sex Oriented Business and each of its officers and directors, but not individual shareholders. For purposes of this Chapter, "corporation". shall also include not-for-profit corporations and limited liability corporations. (Urg. 3341-10/96, 3431-7/99) (g) Operator: 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. (f)(h) Performer. "Performer" means any person who dances, models, efiteftains 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.(3431-7/99) 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 legisdrft/mc570/8/24/00/11:29 AM 8 period, shall to the extent permitted by law be deemed to be a regular and substantial course ofconduct.(Urg. 3341-10/96, 3431-7/99) NO) 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. (Urg. 3341-10/96, 3431-7/99) (O(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. (Urg. 3341- 10/96, 3431-7/99) 4)(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 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: (Urg. 3341-10/96, 3431-7/99) (i)(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 (U rg. 3341-10/96, 3431- 7/99) (4)(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 Iegisdrfdmc570/8/24/00/11:29 AM 9 to the extent permitted by law be deemed to be a regular and substantial course of conduct. (Urg. 3341-10/96, 3431-7/99) Oi4}(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. (Urg. 3341-10/96, 3431-7/99) (k)(m)Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel" means a hotel or motel, which (Urg. 3341-10/96, 3431-7/99) (4)(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 (Urg. 3341-10/96, 3431-7/99) (ii)(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." (Urg. 3341-10/96, 3431-7/99) (1)(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. (Urg. 3341-10/96, 3431-7/99) (n)(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. (Urg. 3341-10/96, 3431-7/99) (n)(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. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/8/24/00/11:29 AM 10 {e3(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, projectors 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. (Urg. 3341-10/96, 3431-7/99) (p)(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. (Urg. 3341-10/96, 3431-7/99) W(s) Specified sexual activities. "Specified sexual activities" means any of the following: (Urg. 3341-10/96, 3431-7/99) (1) Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct phys ^^' stimulation of unelothea genitals 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. (Urg. 3341-10/96) (2) Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; (U rg. 3341-10/96) (3) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or (Urg. 3341-10/96) (4) Actual or simulated fondling, erotic or sexually touching of human genitals, pubic region, buttocks, cleft of the buttocks, female breast; or anal region. (Urg. 3341-10/96) (5) Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or (Urg. 3341-10/96) (6) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or (Urg. 3341-10/96) legisdrft/mc570/8/24/00/11:29 AM 11 (7) Human excretion, urination, menstruation, vaginal or anal irrigation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (f)(t) Specified anatomical areas. "Specified anatomical areas" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96) (2) Human male genitalia in a discernibly turgid state, even if completely and opaquely covered. (Urg. 3341-10/96) (3) Any device, costume, or covering that simulates any of the body parts included in subdivisions (1) and (2) above. (Urg. 3341- 10/96) 5.70.015 Statements and records. Person(s) required to obtain a Sex Oriented Business Permit shall maintain complete records which can be segregated with regard to all transactions involving such products, merchandise, services or entertainment which are sufficient to establish the percentage of gross receipts of the business which is derived from such transactions. (Urg. 3341-10/96, 3431-7/99) Such records shall be maintained for a period-of.at.least three.(3),years..(Urg..3341-710/96). 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. (Urg. 3341-10/96) 5.70.020 Permit required. (a) No person, association,partnership or corporation shall 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 Permit and a business license from the City of Huntington Beach. (Urg. 3341-10/96, 3431-7/99) (b) To obtain a permit to own, operate, engage in, conduct or carry on any Sex Oriented Business, the Owner 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 paid to the City to defray, in part, the cost of investigation and report required by this chapter. The receipt, or a copy legisdrft/mc570/8/24/00/11:29 AM 12 thereof, shall be supplied to the Chief of Police at the time such application is submitted. (Urg. 3341-10/96, 3431-7/99) (c) The application for Permit does not authorize the engaging in, operation of, conducting of, or carrying on of any Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (d) Only the Owner of the Sex Oriented Business is eligible to obtain a Sex Oriented Business Permit. (Urg. 3341-10/96, 3431-7/99) (e) The Owner shall post the Permit conspicuously in the Sex Oriented Business Premises. (Urg. 3341-10/96, 3431-7/99) (f) The fact that an Owner has other types of state or City permits or licenses does not exempt the Owner from the requirement of obtaining a Sex Oriented Business Permit. (3431-7/99) 5.70.030 Application for Sex Oriented Business Permit. Each application for a Sex Oriented Business permit shall contain the following information: (Urg. 3341-10/96) (a) Owner Information (Urg. 3341-10/96, 3431-7/99) (1) The full, true name and any other names, including aliases, used by the applicant. (Urg. 3341-10/96) (2) The present business address and telephone number of the applicant. (Urg. 3341-10/96, 3431-7/99) (3) Acceptable written proof that the applicant is at least eighteen (18) years of age. (Urg. 3341-10/96, 3431-7/99) (4) The social security number and state driver's license or identification card.of .. the applicant. (3431-7/99) (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. (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) legisdrfdmc570/8/24/00/I I:29 AM 13 (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, 2661, 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. (Urg. 3341-10/96, 3431- 7/99) (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; and eµeh steekholdef holding more than twenty rvl vvllt (c.V%) of the Jwvn 1 , including interests.propeAy 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. All individuals owning a twenty pereen* (c.V%) or-g'1V{ALVl equitable interest, "' 1111 V1 VJlJ 111 0— --1- —r-iented Business shall 4 sign all LIlJlJ 11V1111 V11 1V1111J 1V1i U11VU of an individual appheant tinder-this , Urg. 3341-10/96, 3431- 7/99) (b) Business Information (Urg. 3341-10/96) (1) The name and address of the owner and lessor of the real property upon which the business is to be conducted. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) 1egisdrfdmc570/8/24/00/11:29 AM 14 (3) The address to which notice of action on the application is to be mailed. (Urg. 3341-10/96) (4) The name(s) of the responsible person(s) 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). (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.035 Sex Oriented Business Permit Issuance. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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. 5.70.040 Sex Oriented Performer Permit (Urg. 3341-10/96, 3431-7/99) (a) NO PeFSOR shall engage in or-pai4ieipate in any live per-fefmanee depiefing speeified anatemieal 1ving specified sexual aetivities without a valid Sex Oriented PerfeFmer-Pefmit issued by the Git (Urg. 3341 10/96 343��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 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. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/8/24/00/11:29 AM 15 (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. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (f) The completed application shall contain the following information and be accompanied by the following documents: (Urg. 3341-10/96, 3431-7/99) (1) The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant; (Urg. 3341-10/96) (2) The applicant's height, weight, hair and eye color and date and place of birth; (Urg. 3341-10/96, 3431-7/99) (3) Present residence address and telephone number; (Urg. 3341- 10/96, 3431-7/99) (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, 2661, 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. (Urg. 3341-10/96, 3431-7/99) (5) The social security number and state driver's license or identification number of the applicant. (Urg. 3341-10/96, 3431- 7/99) (6) Acceptable written proof that the applicant is at least eighteen (18) years of age; (Urg. 3341-10/96, 3431-7/99) (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; (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/8/24/00/11:29 AM 16 (8) The business address and telephone number where the performance will take place. (3431-7/99) (9) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.045 Sex Oriented Performers Permit Issuance. (Urg. 3341-10/96, 3431-7/99) Within ten (10)business days of receipt of a completed application, as set forth in Section 5.70.040 and payment of the applicable fees, the Chief of Police shall issue a Sex Oriented Performers Permit. However, issuance of the permit does not preclude revocation of the permit pursuant to Section 5.70.120. (Urg. 3341-10/96, 3431-7/99) 5.70.050 Applicant to appear. The applicant for a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (Urg. 3341-10/96, 3431-7/99) 5.70.070 Permit renewal. Each Sex Oriented Business Permit and Sex Oriented Performers Permit shall expire one (1) year from the date of issuance. The applicant shall make application for renewal to the Chief of Police on a form provided by the Chief of Police accompanied by the renewal fee and a copy of the Permit to be renewed. 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. (Urg. 3341- 10/96, 3431-7/99) 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 shall be given, in writing, to the permittee within ten (10)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 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. (Urg. 3341-10/96, 3431-7/99) The applicant for renewal of a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (3431-7/99) 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 legisdrft/mc570/8/24/00/11:29 AM 17 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. eithe any individual..he previously owned e less 41,a twenty per-cent (200%) ;4'4L.o vvLr ViLLLivu or-Yua LLLVi aauY uvL:luires at least e e the n n4;.�... ; ol.l 4�-ansf FFe.l o assigned after the issuane of n p •tiv.;4 L11V VV1t.JV1 UL1 Vll 1J WILL, Ll UllJ1V e e stoek authorized but not issued at the time of the gfanting of a pe it. is their-e-I issued and sold, tr-ansf r..eaor-assigned. (Urg. 3341-10/96, 3431-7/99) 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. (Urg. 3341710/96) (b) No Sex Oriented Business Performer permit may be sold, transferred or assigned to any other person or persons. (3431-7/99) 5.70.090 Sex Oriented Businesses -- Change of location or name. (Urg. 3341-10/96) (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 city, and approval has been obtained from the Chief of Police. Such approval shall not be given unless all requirements and regulations, as provided herein for applications for permits, have been met. (Urg. 3341-10/96, 3431-7/99) (b) No permit holder shall operate, conduct, manage, engage in, or carry on a Sex Oriented Business under any name other than his name and the name of the business as specified on the applicable permit. (Urg. 3341-10/96, 3431-7/99) (c) Any application for an extension or expansion of a building or other place of business where a Sex Oriented Business is located shall require inspection and shall comply with the provisions and regulations of this Chapter. (Urg. 3341-10/96) 5.70.095 Sex Oriented Performer--Change of location or name. No permit holder shall perform under any name other than the name specified on his or her permit in any other location other than the location specified on his or her permit. (3431-7/99) 5.70.100 Sex Oriented Business Standards of Operation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) legisdrft/mc570/8/24/00/11:29 AM 18 SEP. 5.E000 1:01Pr1 IIV.114 1-. 14 REPORT TO THE AMr=RICAN CENTER FOR LAW AND JUSTICE March 31, 1906 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE • 12 113,p.121, or exposure of minors to sexually explicit materials they are otherwise legally barred from obtaining on their own [13,p.12]. harassment and propositioning of pedestrians in the vicinity can be seen as a direct outcome of the presence of sex oriented businesses, The presence and operation of a sex oriented business sets a context for interpreting behavior in the immediate area [18) in a frame defined by the most salient characteristic of the area. The sex oriented business is a highly visible element in its block because of its novelty and typically large signs [2,p.51;19,p.3j necessary to attract its regional clients(*. This salience has a negative halo effect upon the area, defining the area and those within in it according to its most visible element, the sex oriented business, It is well documented that in interpreting the behavior of others we attribute their behavior to personal dispositions rather than to extemal influences(20). Thus pedestrians, particularly women and especially younger women, walking in the vicinity of a sex oriented business may be perceived by other pedestrians in the area as being there for reasons related to the sex oriented business and approached or spoken to accordingly. The area in the vicinity of sex oriented business thus becomes one women will nctventure near to avoid being accosted. This is especially so in smallercities and towns where they are more likely to be seen by persons who know them. A related problem facilitated by the presence of the sex oriented businesses is the common focus for conversation among strangers it provides [14]. Whyte (1980) has described the impact of"triangulation" where the physical setting provides a salient event or object that creates a justification 111cir strangers to speak to crte another. Whyte uses the capture of a Dank robbery suspect as an example of when unac;uainted persons feel free to talk with one another in an anonymous public setting. However, to lock at this phenomena from its less positive implications, a commercial sex business creates an atmosphere where opening discussions acout sexwith strangers is facilitated.The sex oriented business thus facilitates not only potentially harassing or intimidating situations for passersby but also provides the prop or support for those looking to make contacts nor prostitution and solicitation among strangers. The social and physical incivilities (e.g., harassment, propositioning, litter...) described above are well documented not only in their immediately intimidating aspects but also in their larger creation of a climate of fear in a neighboncced(21,p.294; 22: 23). This may well have something to do with the impact of sex oriented businesses on property values and assessments documented in the next section of this report. ERGIEnvironmental Research Group March 31. 1998 SLY. 5.ebb 1;ulF'111 REPORT TO THE AMERICAN CENTER FOR LAW AND JUSTICE March 31, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE - 13 PROPERTY VALUES A. Assassmmrrs Research indicates that the presence of sex oriented businesses is consis- tently and strongly associated with perceived decreases In value of both residen- tial and commercial properties In the opinion of real estate appraisers and lend. ers. There is a large body of work relating the presence atone or more sex oriented businesses to perceived reductions in the value of nearby residential and commercial properties. Appraisers and lenders in national and local surveys of consistently report negative impacts for sex oriented businesses an their immediate neighborhood. The City of Indianapolis has conducted the most detailed and extensive work in this area. Most other studies They conducted both a 20% sample National survey of real estate appraisers and a 100% survey of appraisers in similar sized cities with a response rate of 330,10. The majority of appraisers (i 5%) responded that an adult bookstore within 1 block of either a residential (80%) or commercial property (721%) would have a significant negative impact on the property's value. 39% estimated a loss of 1 to 20% of a residential property's value and 210110 predicted a loss of over 20%. For commercial property 62% predicted a loss of 1 to 20% of a property's value with 10% predicted a IQ of over 20%. No other type of facility, including a drug rehabilitation center had as significant a negative impact on estimated real estate values. Similar results have been found in other studies. In Austin a questionnaire prepared by the Office of Land Development Services of the City of Austin was mailed to 120 local real estate appraisal and lending firms using a very similar questionnaire. The results `ram the 54 responses received were that 88% of respondents felt that an adult bookstore within one block would decrease residential property values.while 59% felt a negative, albeit reduced impact at 3 blocks distance. (10, pp.24-251 The margin of error for this survey is approxi- mately plus or minus 14 percentage points. The reasons given by Austin respondents included, 1, These types of sex oriented businesses make homes less attractive to families thus lowering their value and demand for them, 2. Sex oriented businesses lead mortgage lenders to the conclusion that the neighborhood is in decline. This makes them unwilling to provide 96%financing for properties in these areas, again reducing demand and property values. The Austin study also reviews a similar study by the City of Los Angeles, Similar results to the above mentioned studies were found with over 90 percent responding that concentration of adult businesses would make it more to rent or sell residential property within 1000 feet ERG/Environmental Research Group March 31, 1996 P. SEP.RF aRT TO THE AMERICAN CENTER FOR LAW AND JUSTICE N0.114 Marchl31, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE- 14 of adult business enterprises[10,p.40].A parallel survey of property owners within 500 feet of the Los Angeles study areas containing multiple adult businesses was conducted.Eighty- five percent of those responding indicated that adult businesses had a negative affect on the sales and profits of other businesses in the area 1101p.41 j. Property owners also cited other negative impacts from the presence of adult businesses, including difficulty in recruiting employees and the deterrence of patronage by women and families 110,p.41 j. Limitations on businesses evening hours of operation were also cited [10,p.411. This dearly ties back into the issues of development of an intimidating atmosphere in the vicinity of a sex oriented business where significant portions of the community feel threatened just in passing through the area. In 1986, Oklahoma City's Community Development Department [24J conducted a similar survey of all real estate appraisers(N=100) listed in the local yellow pages. The survey had a 34%response rate(n=34)with 74%estimating some decrease in property values and 56% estimating a decrease of 10% or more for residential properties within one block. For commercial properties 76% estimated some decrease in property values and 47%estimat- ing a decrease in value of 10% or more within one block. The proportions are similar to the studies cited above, although the small number of respondents increases the margin of error to more than plus or minus 20 percentage points. The results of all studies reviewed find consistently that the vast majority of real estate prcfessicnals are of the opinion that the presence of sex oriented businesses decrease .property values within a block of the business with the impact decreasing to none over 1 C00 feet from the sex oriented business. S. PROPERTY VALUES Research supports an association of the presence of sex oriented businesses with reduced property values in their vicinity. The actual relationship between changes in prep" values and the presence of adult entertainment establishments has been shown to be a negative one in research in municipalities. The City of Indianapolis, Indiana compared canges in property values and activity in areas with sex oriented businesses, comparable areas, and the Township encompassing the city as a whole. Studying the years 1979 through 1982 it was found that areas with sex oriented businesses had slight increases in rates of turnover in property at a time when the control areas and the township as a whole showed strong decreases in real estate turnover. During the same period the study areas with sex oriented businesses showed smaller increases in property values in comparison to both control areas and the township as a whole. EAG/Emvironmental Research Group March 31, 1996 UIJ titre mi.�rwr%T)v I A=AMERICAN CENTER FOR LAW ANI)JUSTICE �y� 114 March 31, 1996 ON THE SECONOARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE-13 RELATIONSHIP OF BUSINI95sE$ TO THEIR LOCAL Nwrms RH000 Sex oriented businesses are not neighborhood facilities. Trade area studies indicate they are regional facilities attracting people from outside the neighborhood they are located in. This increases the porosity of the neighborhood to strangers and perpetrators, decreases informal social control of behavior, and increases the potential for opportunistic crime. Two municipalities have conducted observations of customers'license plates to identify the origin of customers for sex oriented businesses. Studies conducted in Bothell, Washington (11, p.5, and Austin, Texas (10, p.311 examined the registration addresses of vehicles parked at selected sex oriented businesses in their municipalities. Out of 321 vehicles observed in Bothell only 8 (25%) were registered in Bothell. In Austin, of 81 vehicles observed at an Adult Bookstore,a Topless Bar,and an Adult Theater only 3 had addresses within a mile of the faciffty.Forty-four percent of the vehic!es were registered outside the city. Supporting this are comments gathered by the New York City Planning Department from owners of sex oriented businesses. Their comments confirm the regional rather than !coal rnarket of these facilities, The comments restate the importance of main arterials, parking, and access to public transit to the location of su=essful sex oriented businesses (2, p.26j. Thus sex oriented facilities bring persons from outside the immediate community into the neighborhood where they have no attachment for the area. increases in the presence of nonresidents, in vehicular traffic, and parking in the neighborhood stress resident's ability to recognize other residents and challenge those who are there for illicit purposes [12, 2251. The regional customer base also means that the crnnection between the neighbonccod and the sex oriented business is weaker and the owners are less likely to be responsive to neighborhood concems or problems. IMPLICATIONS FOR SmALL TOWNS The presence of sex oriented businesses in small towns is likely to be magni- fied beyond that which would be expected in target cities because of the more compact nature of downtowns and their relationship to surrounding neighbor- hoods, (See diagrammatic representation an page 17) 1.The smallerthe commercial district the largerthe impact of a sex oriented business is likely to be. The negative halo effect of such a business wilt affect a larger proportion of the towns business than it would in a larger city..Considering that many commercial districts may only be one or two blocks deep and sac to 10 blocks long there is likely to be a strong negative impact an commercial activity In the town if people wish to avoid the sex oriented business. 2. Sex oriented businesses are regional businesses. Small towns do net have sufficient target populations to support these businesses as has been documented in trade area studies. Thus a sex oriented business in a small town will have the impact of drawing a regional population into its area of the town. This will be a largely adult, male population in ERG/EnvirOArnental Research Group March 31, 1996 SEP. 5.2000 1:04PM 11U.111+ r. 10 REPORT TO THE AMERICAN CENTER FOR LAW AND JUSTICE March 31,1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE•16 its twenties. It is an audience that has interests and activities that are at odds with those of families and the elderly. I Small towns are more likely to have fewer days and hours of commercial activity than larger cities. This makes it more likely that an operatilng sax oriented business wiii have a larger impact on the arrea it is situated in during off hours for businesses.Where semi-private, uncontrolled spaces are in the vicinity(l.e.., parking lots, parks, recessed storefronts, etc.), they are more likely to be available for inappropriate uses. Particularly in small towns, the likelihood of a cruising circuit for cars in the vicinity of the sex oriented business increases. This will bring additional noise, disruptive activity, and the likelihood of illicit activity into the area. 4. Small towns are currently more likely to be under economic stress than larger cities. This is frequently characterized by empty storefronts in the downtown. Where storefronts are empty in the location of sex oriented business, there is a greater likelihood of other sex oriented or alcohol oriented businesses locating there,further stressing the area businesses that are not sex oriented, and facilitating greater levels of illicit activity in the vicinity. Where downtowns are competing with regional mall shopping centers the presence of sex oriented business in the downtown will likely have an aggravated impact on downtown businesses in the vicinity. 5. The small size and lack of depth of small town commercial districts raises the probability of substantial impacts of sex oriented businesses upon residential areas of the town. 6. Smaller populations means, typically, that there will be gaps in the use of public and semi- private spaces, and larger periods of lightuse.This provides more iccations far potential illicit activity when these spaces are within a five hundred to one thousand foot radius of a sex oriented business. ERG/Environmental Research Group March 31, 1996 2000 SEP.REPORT TO THE AMERICAN CENTER FOR LAW AND JUSTICE N° 11a March 31, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED BUSINESSES PAGE , 17 Rome,Georgia Illustrative Site Conditions Now EW"Hoaft Recessed store fronts can become problem sites when stores are closed Raae9sed Store EMries :.ir'• A Tavern 'rho Cub Sim sites for ; Rq�Emv loitering and illicit "`— aCZivity between bar and sex f oriented site Thom stop Parking Lot Vacant sites San avAst— related businesses s• �Jorr1�Cainnurugr ioo9gr � I NOt tO scale For Mustrative purposes Drily Possible cruising route FIGURE B. ILLUSTRAMN OF POTEN71AL SECONDARY IMPACTS OF A sic ORIENTED BUSINESS ON A SINALL TOWN NM STREET, ERGVEnvironmeotai Research Group March 31, 1996 5tr. KhPURT r u U14MFt AMERICAN CENTER FOR LAW AND JUSTICE �yV 11 March 31, 1996 ON THE SECONDARY IMPACTS OF SEXUALLY ORIENTED 8USINESSES PAGE- 18 r SOURCES 1. Gilfoyle,T.J., Clfy of Ems:New York City, ProsOution, and the CommercM&ation of Sex, 1790-1920, 1992, New York W.W. Norton & Company. 462. 2. Adult Entertainment Study, . 1994, Department of City Planning C;ty of New York:New York, New York, 3, Malamud, G.W., Boomtown Communities. Environmental Design Series, ed.R.A. Daber. 1984, New York Van Nostmnd Reinhold Company,255. 4. Leonard, C. and I. Walliman,Pros>titudon and Changing Morality in the Frontier Cattle Towns of Kansas, in Prostt don, Drugs, Gambling, and Organized Crime, E.H. Monkkonen, Editor. 1992, K.G. Sauc New York, p. 794. S. Noel,T.J., The City and the Saloon:Denver, 1958-1916. 1982, Lincoln, Nebraska; Univer- sity of Nebraska Press. 148, 6. McCormick, J.S., Red Lights in Zion: Salt Lake CMIS Stockade, 1908-1911, in P=ftfon, Drugs, Gambling, and Organized Crime, E.H. Monkkonerr, Editor. 1992, K.G. Saur. New York p. 794. 7. $ante, L., Low Life:Lures and Snares of Old New York. 1991, New York: vintage Books. S. McCleary, R. and J,W. Meeker, Final Report to the City of Garden Grove; The Relationship between Crime and Adult Business Operadons on Garden Grove Boulevard . 1991, City of Garden Grove: Garden Grove, California. 9. Adult E-7tertainment Business in Indiannapods:An Analysis. . 1984, uepartment of Metro- politan CevNopment: Indiannapolis, IN, 10. Reporr on Adult Criented Businesses in Ausdn, , 1986, Special Programs Division Office of Land Oevelopment-Services City of Austin, Texas:Austin, 'texas, 11. Cire&wes Report:Proposed Land Use Code Text Amendment-Adult Cabarets. . ISee, Department of Construction and Land Use City of Seattle: Seattle, WA. 12. Fowler, F.F.J., M.E. McCalla, and Y,W. Mangione. Reducing Residential Crime and Fear. 777e Harifard Crime Prevention Frogram, , 1979. National institute of Law Enforcement.and Criminal Justice: Washington, D.C. 13. Report of the Attorney General's Waking Group on the Reguladon of Sexually Oriented Businesses, . 1989, Attorney General State of Minnesota: Minneapolis, Minnesota. 14.Whyte, W.K. The Social Life of Small Urban Spaces. 1980, Washington, D.C.: The Conser- vaticn Foundation. 125. 15.Warr, M., Cangerous Situations:Social Context and Fear of Victimization. Social Forces, 1990. 68(3): P. 891-907. 16. Bryant Park:Intimidation or Recreaden, , 1981, Projec: for Public Spaces, Inc.: New York.. N.Y. 17. The Chelsea Business Survey:An Assessment of the Economic Impact of=-Rated Video Stores in Chelsea, , 1993, Community Board 4: New York City. 18. Goffman. E., Frame Analysis. 1974, New York: Harper&Row, Publishers. 586. 19. Report of Committee on The Pmposed Regulation of Sexually Or*ted Businesses, . 1983, Houston City Council: Houston, Texas. 20. Jones, E.E. and R.E. Niisbett, The Actor and the Observer. Divergent Perceptions of the Causes ofHehavi'or, in Attnbution:Perceiving the Causes of Behavior, E.E. Jones, et at, Editors. 1972, General Learning Press: MoaWowm, N.J. 21. Taylor, R.B., Neighboni7cod Physical Environment and Stress, in Environmental Stress, G.W. Evans, Editor, 1982, Cambridge University Press: Cambridge, UK. p. 286-324. ERG/Environmental Aeaearch Group March 31, 1996 SEP. 5.2000 1;05PN N0. 114 P.21 REPORT TO THE AMERICAN CENTER FOR LAW ARID JUSTICE March 31, 199a ON THE SECONDARY IMPACTS OF SEXUALLY OWENTED 6USINEMES PAGE- 19 22.Perkins, D.D„ J.W. Meeks,and R.B.Taylor, The Physical Environment of Sbr+eet Blocks and Resident Pwmpdona of Cfine and Disorder. lmp/lcoWns for Theory and Measurement Journal of Envim imental Psychology, 1992. 12:p.21-34. 23.Perkins,D.D., of aL, The Phyakl En*cnment of Street Crime:Dsfonvble Space, Territor. allty and lndvrWes. Joumal of Envlrenm+enN Paycholca, 1993. 13: p. 2S 49. 24.Adult Entert*rimsnt Businesses In 01dahom W.A Sunray of Real Estate appraisers, . 198e. Community Dsyslcpnnent Department, Planrdng ONWon:Oklahoma My. 25. Newnan, 0.,DMenWWO Specs:Crone Provengon through Urban Daslgn. 1973, Now York Macmiilaan PublIshing Company, Ino,264. EROMmviramrmotal Research Group March 31. 1996 SEP. 5.2009 1:06PM-'- MO.114 P.EE Sample Comprehensive SCB Ordinance ORDINANCE NO. AN ORDINANCE AMENDING THE ZONING ORDI- NANCE P WSPERSING SMALLY ORIENTED SUSINUSES AND UIR► tNG 'THEM TO A SPECIFIED ZONING DISTRICT; PRESCRIBING DEFINITIONS OF SEXUALLY ORIENTED BUSINESSES; PROVIDING FOR LICENSING AND REGULA- TION OF SEXUALLY ORIENTED)BUSINESSES AND EMPLOY- EES; PROVIDING FOR ADDITIONAL MISCELLANEOUS REGULATIONS FOR SEXUALLY ORIENTED BUSINESSES. WHEREAS,sexually oriented business require special super- vision from the public safety agencies of the City in order to protect and preserve the health,safety, rrsorais and welfare of the patrons of such businesses as well as the citizens of the City;artd WHEREAS, the City Council finds that sexually oriented busi- ne.ses are frequently u ed for unlawful icxual activities, including Fre.itituiion and se-wal liaiacru of a vaual nature. and WHEREAS, the concern over sexually tranamittrd diwuas is a lvgitirn. ate health concert cf the C.ty which de:naods seasonable regulation of sexually ariented busireases in 1.3rder to protect the health anti weal-being c;f the citizens: 3rtd WH UEAS, licensing is a iegitirnate anti masonabic meam of accountability to ensure that operamrs of sexually oricrtcd busi- nesses comply with r+eamnable reguiattorw and to ensure that oper- Cori do not knowingly allow their establishm. ents to be used as placLw nt illogalcual activity ar salic:tatiun:and WHEREAS. there is convincing docurnented evidence that sex- ually oriented buainesses, bemuse of d%eir very nature, have s dele- terious effact on both the cuisting bwinessm around ftm and the surrou:uli»ll residential acme adj=nt to them. =using 'metl cr=e and the downgrading of property values; and Pmfcch",T Com umhd Fom Serially Oriewerd BtWitme str. �.. eXUJM 1;abrf 7 WHEREAS, it is recognized that sexually oriented buoinewe;e, due to their nature, have serious objectiemabie operatio" eharac- teriotics, particularly when they an: located in close pmximity to each other, thereby contributing to urban blight and downgrading the quality of life in the adjacent area; and WHEREAS, the City Courtdl desires to minimize and control these adverse effects and thereby protect the livalth,safety,and wel- fare of the citizenry; protect the either+ fnim increased ased crime; pre- serve the quality of We;preserve the property values and character of surrounding neighborhoods and deter the spread of urban blight; and WHEREAS, the City Council fibs determined that locationat criteria alone do not adequately protect the health, safety, and gen- eraI welfare: of the poaple of this City; and WHEREAS, it is not the intent cr this ordinance to suppress anv snPreh activities protected by the First Amendment, but to enact a content-neutrai ordinance which addretiycs the sccordary effects or sexually oriented buai tesses;and WHEREAS, it is not the intent of the, Citv Council to condone or ;ebitimize the distribution of obscene mmurial, and the Council r o ues that state ant iede'ml law ptvhibits the distribution of obscene materials arzd exile and enccuragcs start law enforst.- ment officials to enforce state obscenity statutes against 3ny such ille;al an.vtties to the City, Pursuant to the authority granted by the Car►.5t,tution and the legislature of the State of , BE rT ENACTED BY THE CITY COUNCIL OF cour�:, SECTION i. PURPOSE AND FINDINGS. (A) Pub,e. It is the purpose of this ordinance to regulate sexually /IpJti;11: Soeerplr Gulfprt/mnafw So U►drnnncr 5tr. �.C 7L7Rttt# 1•E71 rl9 1V.11'-fmENOr.C`il oriented businesses in order to promote the health, safety, morals, and Senetal welfare of the citizens of the City, and to cwtabUsh rea- sonable and uniform regulatiory to prevent the deleterious locative, and concentration of sexually oriented busine ems within the City. The provisions of this ordinance have neither the purpaw nor effect of imposing a limitation or restriction on the content of any com- municative materials, including sexually oriented materials. Siwdlarly, it is not the intent nor effect of this ordinancvr to rmtrict or deny act by adults to sexually oriented materials protected by the Fiat Amendment, or to dmy access by the distributors and exhibitors of sexually oriented entextainmont to their intended mar- ket. Neither is it the intent nor effect of this ordinance to undone or legitimize the distribution of obscene material. (13) EjZj ' + �. Based an evidence concerning the adverse secondary effects of adult uses an the c=tnunity presented in hearings and in repom made available to the Council, and are findinbrs incnrpeirat- ed in the castes of City of Rdnian :. Playtime Thc-arrrs, hrc., 4771 U.S. 41 (1966), Yvuny v, 41incrican Mini Matrus, 426 U.S. 30 (1976), and sorties V. Glee: nrxrm, h1c., 501 U.S. 560 (1991), and Art studir-� in other canrtiunitie9 including, buT not limited to, Phoenix, A:izwa; Mirmeauulis, Minnesota; 1Nousron. Texas; lnatanlpolLs, Indiana; A.tnariilo, Texas;Garden Crove. California; Leib Angeles,California; Whittier, California, Austin, Texas; Seartle, Washington; Cklahoma City, Mahama; Cleveland. Chia; and 8eaumant. Texas; and also on Bindings : arri the Reocrr ai -.he Artorney General's Narking Group Or. T•ne Reguiadon Cf Sexually Orienttc Cusir.e_ses. (I a c, 11;89, State 0iMinnesom). the Ccume"l rinds: (1) Sexually oriented businesses lend themse:vcs to ancillary unlawful and unheaithy wnvmcs that are presently uncontrolled by the operators of the establishments. Further, there is pre3endy sic mec'hani= to make the owners of these establishments %-sNA- 4ible Fur the ac;ivitieb that occur(in their premises. (2) Certain a rnolayees of sexually oriented bvsint-sex defined tat this ordinance as adult theaters aitd uGsnts csVgu in higliex incidence of certain types of illicit sexual behavior them ampluycmt of other establishments. f+rnfKtin �Jnnertrrtl R tits Ervin Seateafly tlrantcr!1lu;anas♦tt SEP. 5.2000M 1:O'Phl r�•.11 _c� (3) Sexual acts,including masturbation,and oral and anal sex, nccUr at sexually oriented businesses, e-specially these which pro- vide private or semi-private boothm rir cubicles for viewing films, videos,or litre sex shows. (4) Offering and providing such space encourage, such activi. ties, which creates unhealthy condidom (5) Persons frequent cet In adult theaters, adult amades,-and other sexually ociented bwimses For the purpose of engaging in sex within the premises of such sexually oriented businmes. (6) At least 50 communicable di, !awes may be spread by activ- ities occurring in sexually oriented busirelsm, irtciuding, but not limited to, syphilis, gonorrhea, human immunodeficiency virus infection (HIV-AIDS), genital herpew, hepatitis 0, Non A. Non 3 amebiasis,salmonella Wectiamm and slu8ella infections. (77) Since 1981 and to the prmnt, there has been an incasing cumulative number of :epected cases of AIDS caused by the human immunedeficienc/ virss (F?IV) in the Grlita:i gtat" -- 600 in 1982, 2,3QU in 1983, 4,600 in 1984, 8,555 in ;985 and 2.51,448 through December 31, 1992. (8) As of 190 there have been rLpVrtud cases of AIDS In the State o (9) Since 1981 and to the pr sert4 there have been an 1rzc:vas- ing cumulative number of peracma r"ling pmit;ve for the 'KV antt- badv test in (10) The number of cases of early (less than one year) syphilis in the United States reported annually ha.% risen, with 33,613 easel reported in 1982 and 45100 through November of 1990. (11) The number of cases of gonorrhea it the United States' reported annually ra nsins at a high level, with over one-half mil- Han cases berg reported in 1990. i d: lima~ a Caen hen ixa a/Pe'nJ a Af P^� �01c StJtt G7rd i+tr SEP. 5.E000r 1:08PM (12)The aurgecm general of the United States in his report of Octc*cr 23, 1986, hati advised the American public thn: AIDS and MV infection may be transmitted through v*ual contact, intra- venous drug abuso, exposure to infected blond and hinad compo- nents,and from an infected mother to her newborn. (13)According to the best scientific avidence, AIDS and MTV infection, as well as syphilis and gonorrhea, are principally trans- mitted by sexual acts. (14)Sanitary conditions in some sexually oriented businesses are unhealthy, in part, because the activities conducted there are unhealthy, and, in part, because of the unregulated nature of the activities and the failure of the owners and tho- uperatars of the facilities to self-regulate those activities and maintain those, facili- ties. (15) Numerous studies and reports have determined that semen is found in the areas of sexually oriented bwnnessmi where persons view 'adult"oriented r Irns. (16) The finding noted iri paragraphs number 1 thmugh 15 raise substantial govenmerttaiconccrns. (17) Sexually oriented businesaets have operatiunal characteris- tic; which shauld be reasonacly regulatcd in order to protee, those substantial govcrrtncntal cone-m. (18) A reasonable liciing pcv.Ydure is all appropriate mecha- nism to place the burden of that reasonable regulation on the own• erx and the operators of the mxuelly oriented businc.4sc& Furthcz such a licensing procedure will pisce a heretofore nonexistent incentive on the operator to see that the sexually oriented business is run in a marwcr consistent with the health,safety and welfare OF its patrvcw and employs. as well as the citizens of the City. It is appropriate to require reasortable aasurarcm that the licensee is the a.Ctual operator of the sex-orwy mcrift-d 1husi"Mr., fully in pasw.s- sion and control of the promises and activities Qccurring Ownin, P ken sf Cow itus Frain Sesuatly OntMed Aicst�t�xrs SEP. 5.2000M 1:08PM C�(XMNNIJJ� • (19)Removal of doom on adult booths and requiring sufficient Iightiq on premises with adult bootlts advancer a substantial gov- ernmental intetest in curbing the illegal and unsanitary sexual activity occurring in adult theaters. (20)Requi iq licensees of sexually oriented busintesm tc) keep information regarding current empooyem-s and certain past employ- ' ees will help reduce the incidence of certain types of criminal behavior by facilitating the identification of potential witnesses or suspem and by preventing manors from working in such establish. • ments. (22)The disclosure of certain information by those persons ulti- mately resportsible for the day-today operation and maintenanc, of the sexually oriented buainew, where such information is sub- stantially related to the significant srivernmental interest in the operation of such ums, will aid in preventing the spread of sedum1%, transmitted diseases. (mil it is dotraoir in the prevention of the spread ni comrzuni- cable diuz.%*:; to obcau1 a limited amount of miormatiom regarding cer sin employees who may vngsge.ul the conduct which this ordi- nance is designed to prevent or who arc likely to be wihmiscs to such ac'ivit`. (23) The fac: that in applicant fvr art adult use iicertse has iecn convicted of a sexually related r:iuty !leads to the rational assur:ip• tion that the applicant may engage in that cundtut in contravention of this ordinance. (24) The barring of such individuals from the rranage•rnert of adult uses for is period of years -wrvvs ati a deterrent to and pre- vents conduct which leads to the tranamiminn of sexually transmit- ted diseam. (25)The general welfare, health, morals and sRfety of the citizens of the City will be promoted by the enactment of this ordinoce. tx A: & ,sior WS Ordirmwe A� �� WEP. 5.2000M 1:09PM 7�.114—r.crs SECTION II. DEFINITIONS. (1) ADULT ARCADE means any place to which the public is permitted or invited wherein coin-operaNd. slut-op,�rated,'or for any fora,of consideration,eiectmnieally,electrically,or mmhankABY controlled ;still or motion picture machirum. projectors, video or laver disc players,or other image-producing dseviem arc WoIntained to show Images to five or fewer persons per machuto at any one tines,and where the images sc displayed are distinguished or char- acterized by the depicting or describing of "apedfied saaaaal aictivi- tics"er"specified anatomical arcs." (2) ADULT T300MOSEAADSTLT N-01— TY S'FQRE_OR V�PC 5MRE means, a camerwrcial establishment which, as one of its principal purposes, offers for gale or rental for any firm of consideration my one or more of the follnwiny (a) books, nwgazirm, perindicahi or ether printed matte:, or photographs, films, motion picures, video castyvttvti or video reprodue:iuna, ur odwr visual reFrc.,untations whi& are charac- terixe;d by this depic;ion or desc,iptinn of "specified sexual activities" or "speci- fied anammical areas";or (b) ins-truments. devices, or para- phernalia which are resigned fnr u%: in connection wits "specified sexual activities." A cam=,crcial esmblishn=r;stay have other principal business purposes that do sect involve the aifering for sale or rental of mater- ial depicting or describing "mdfied sexual activities"or'spedfled anatomcal areas" and still be,categorized as ADULT 3COY.MRE, AD=MWELTY STORE. ur ADULT VMR0 %MRL Such other businew purposes will nor serve to exempt such cnmrna vial estab- lishamts from being csategcrized as an AUULT BQOKS't RE, A VMT NOVELTY $=RE. or ADULT VIDEO SMRF so lanE as P►nlrenr►p caff"U Wes'pMW Sexually Orfr►Ued lllawwlran SEP. 5.2000 1:09PM U.114 cy ano of its principal business purpows is the offrring for sale or rental for consideration the specified rmaterlali which AM Char- acterized by the depiction or deeCriptinn of"specified tu=xuml activi- ties"or"specified anatomical are".' (3) mearw a nightclub, bar, restaurant, or similar corr awrcial establishment which m-gularly features-, (a) perm-il who appear in a state of _ nudity or semi-elude,or (b) live performances which are charwerised by the exposure of "sp ci- fied anatomical xreW or by "specified sexual activities";or (c) iiima, oration pictures, video eas- setres, skde-s cir ether photographic reproduction;i which me characterized by the depiction or descripcion of"speci- fied ,cxual activities" or "specified anatomical areas." (4) ADU T means a hotel, matei or similar commer- cial eitablislgrr►ent wh:cn: (a) oilers accommodations to the public for any form of consideralian; provides patrons with closed-circuit television trammimians, films, :nation pictures,video cassettes, skim, or other photographic reproductions which are characo.erizrd by rho depiatinn nr description of "specified sexual activi- ties" or"specified owtumical areas";and App"i A: Smplt Gaarpnrheavn sett or4tarocr SEP. 5.2eOO 1:09PN G.114"mm„P.30M has a sip visible from the public right of way which advertises the avagability of this adult type of photographic repro- ductions;or (b) offers a sleeping recoil for rent for a period of time that is less than ten (10)hours,or (c) allows a tenant or oc pane of a sleeping room to subrent the ruin for a period of time that is I&= than ten (10) hours. (5) ADULT M=( ',j=URE-THF-A''1 S means a ��enmer- cial establishment where, for any form of consideration, films, motion pictures, video cassettes, slide:, ar similar photographic reproductions are regularly shown which are characterized by the depiction or description of `sceeined sexual activities" ur "cpe:ified anatomical areas." (6) s�D� ::EFA,MTt means a theater, concert nail, auditori- um, or similar commercai establishment which regularly featu= pc:suns who appear in a state of nudity or semi-nude, or live per- for=ncen whic,`i are charactP^zed by the cxposure of ",specified amwomicai are.u.' or by "specified sexual sctivitcti." (7) Sk2r_QYIE means a pe-sca who perwrms any sc:-vicc on the premises of a sexually ora_nted business on a full-time, par:- time or contract basis, whether or not the person is denominated an ernpleyee, independent contractor, agent or otherwise and whether. nr riot saki person is paid a salary, wage or other compensation by the oparator of said business. Employee does not include a person exclusively on the premises fur repair or maintenance of the premises or equipment on the pretrities,or for the delivery of poods to the premises. : (3) UCO.EiI mearw a peme who, for Corsidum ion, I%rm or offcns to act as a companion. guide, or data for another person,or who agrees or offers to privately model linficrte or to privately per- form a striptease for another person. 1�rofe'�tih C�nrtnunitip!'e�ttt Ses�a!! Ava� � y Vr+rntat aeon+ SEP. 5.2000 1: 10PN�-- .i 1 (9) MCET A Fly a means a perycm Or business association who furnishes, offers to furnish, or advertises to furnish evorts as one of its primary business purposes for a f4c, tip, or other enasid- FNtion. (10) R,T.&JLIS1-FMEN7r means and includes any of the i fofkn�ving: (a) the opening or commencement of arty sexually oriented,business as a new business; (b) the Conversion of an •xistiag business, whether or not a sexually ori- ented business, to any :exually oncntcd busirtem; (t) the additloms of any sexually ori- enced busiress to an), other vxisting sex- ually orier and businczs; cr (d) the relocation of any sexually Oriented basin's. :reins a person in whvse narne a license to operwe a sexually oriented bwsines4 has bean issued, as well as silo individual listed as an applicant art the application for a Iicense; and in the case of an CM010yee, a person in wh*W name a Beer+. has been issued authorizing employment it a sexually oriented business. (12) =C mean any place where s parwn who appears semi-nude. in a sate of crudity,or who displays'ypec- Wed anatomical areas` And is provided to be observed. sketched, drawn,painted,sculptured,photographed,or sinvlarly dopiesed by other pars m whn pay a oncy tw any form of coruideration. Nude Model Studio shall riot include a pn-fiWary sd=l liewmad by thr State of , „ or a coUege,Junior cnlloge or uWvrr- sity supported entirely or in part by public taxation; t private AppWJsA: Siaxp1R CmpRlmdar St?N Vrdimncs �i SEP. 5.2000� 1:10PM -- - -- NO. .32 college or university which maintnins and operates educational prvgran x in which credits are transferable to a colle$l , junior cul- lego, or university supported entirely or }partly by taxation; or in a structure; (a) that has ao sign visible from the exterior of the structure and no tither advertising that indicates a nude or semi-nude person is available for view- ing; and fb) where in order to participate in a class a student must enroll at least thrm, days in advance of the class;and (c) when no tnare than one rtude or semi-nude model is an the premis`:i at arty one time. (11' W►Cl iY or a ,STATE QFNL_0M means tho ,Snowing of the human male or female genitals, pubic area, vuiw i, anus, anal cleft or cleavage with Iess than a fully opaque covering, the show- ►ng or the female breast with less than a fully upaque covering of any part ni the nipple, or the showing of the cnvcmc male genitals in a discernibly turgid state. (14) c CrO ' mean art individual, gmprietursh:p. partnership, corporation, asjociation, or ether legal entity, (35) Jktiil.MF or in a 5EW,: F_CQLNM M trtcana the showing of the ferule breast below a han2omtai line across the tap of the airevla at its highest point nr the showing of the tittle or female buttocks. This definition shall include the entire lower por- tinn of the human female breast, but shall not include any portion of the cleavage of the human fertile breast, exhibited by a dnw. blouse, skirt, leotard, bathing suit, or other wearing appeal provided the areola Is not exposed m whole or in part. (16) GPXTJAL Z � -N-err: means a businasx ar cornmcrcial enterprise that, as nne of its prncipal husiness PrulcHitr�C��mrrrrrnirees !'roar Saxuall,Y 0rrrafrd Awing. purposes,offers for any form of cotwideration; (a) physical contact in thu form of wrtrtthrib or tumbling betwicvn persons of the opposite sex;or (b) activities between male and female persons and/or persons of the same iex when one or mom of the per- SOny is in a state of nudity or semi-nude. (17) SEXU,&LLYQRIENTED BUS NVSS means an adult arcade, adult bookstare, adult novelty Marie, adult video stare, adult cabaret, adult mote!, adult motion picture theater, adult theater, ewortagcney, nude model studio, or sexual cmcuunter center. (18) SP �;Mr!t2 ANAT_ M'1CAL A.jtEAS means; (a) the human malt. gereitais in a dis. ccrnibly turgid state, even if completely and opaquely covered; or (b) Icss than completely and ovagvely covered hurnaf, gt::utuls, pubic regier+, buttocks or a Ec�tial2 bees zt below a ceint immediately abovo thcc ton of the areola. (19) gp_RCIFIED _'RjY N,&L 6 TTVTTY means arty of this following offernsom (a) prostitution or prnmotion of prostitution;diuimnu tir,n of uti kenity; sale, distribution or display of harmful material to, minar; sexual performance by a child; possession or dWrIution of child pornography; public lewdness; indecent exposure. ittdecrra-y with n AppertdfitA: ,iwpb GenpnrJflnaiao$O!Car!l,Hnrcr "SEP. 5.2000— 1:11PM no.114 F -J4 child; engaging in organized criminal activity;twxual assault; molestation of a child; gamblir S; or distribution of a controlled substance; or any similar offenses to du*e described above under the criminal or penal cede of other states or countries; (b) for which. (1) less than two years have elapsed since the date of conviction or the date of release from confinement imposed for the conviction, whichever b; the later date. if the conviction is of a mbdemeanor offense.; (�) leap than five years have elapsed since the date of conviction ec the date of reie.w motet confinement for the conviction~, whichever is the later date, if the conviction is of a fcicsny offense;or (;) le5s than five years have elapsed since the dare of the last canvic- tin; or the date of release from confinc;- ment for the last cinvicion, whichever is the later date, if tl+,e cartvicnone are of two or more rnisdemeanar off". es or combination of misdemeanor uffsrsia o=rr ing within any 24-month period, (c)The fact that a conviction is being appc4led shall have net effect on the dis. qualification of the applicant or a person residing with the appkBrI L 1'rvlerfi� unitici Kin K C•bmn �SexuaflV Q�elrit BWnnd1�N SEP. 5.2E00® 1:12PM ��•114 _�s.� • (20) f%l'.RCIrIF.D SIXUAL Aany-iiat; mesas any of the fnllowing: (a) the fondling or other erotic W=hinfi Of h%ZMRn genitals, pubic region.buttocks,anus,or female breasts; (b) sex acts, norms I or perverted, actual or sirmulated, including; inter- cour",oral copulation. Masturbation,or sodomy.,or (c) excretory funcrions. as part of or m connection with any of the activities set forth in(a) through (b)abavc. (21) SUBFFT�L,OL.AllraEMENT 4 a sexually oriented business meini the increase in floor areas occupied �y the business+ by more than twtmry-five percent (25 percent), as the floor areas exist an the date this ordinance take-s effect. (Z) T ANSME QFQWNIUr T OR CAR IL of a sexually oriented business means and includes arty of the fallnwinbr (a) the saie, k=mc, or sublease of the business; (b) the tramier of securities which constitute a controlling intcrust in the business, wfivther by sale, exchange, or similar Means;Cr (c) the establishmant of a trust, gift, or other similar legal device which triter the ovmenhip or control of the buvinkm, excapt for transfer by lwquest or other operation of law upon the death of the person posmiing the own- ership or cnntml. APFnift M*fir° SEP. 5.200© 1:12PM y�• li4 �C SECTION M. CLASSIFICATION. S`xually oriented business =,Classified ay f0ll0w3: (1) adult arcades; (2) adult bookstores,adult novelty stares,or adult video stores; (3) adult cabarets; (4) adult motels; (5) adult motion picture theaters; (6) adult theaters; (7) e=rt agencies; (s) made model studios; and (9) :exual encounter centers. SECTION IV. LICENSE REQUIRED. (A) It i5 unlawful: (1). For any person to Operate a sex- ually oriented business without a valid sexually oriented ousinNsb license i.mued by the City pursuant to this ordinancv. (+). For any person who operatcs a sexually oriented bwiness to. i.-molay a person to work fvr the sexually ar.cnied business who is not liceaued as a sexual- ly oriented business employee by the City pursuant to this ordinance. (3). for any person to obtain employment with a sexually oriented business without having sr•.rurvd a ,wxu ally nriented business employee license Pursuant to this ordirmce. ftwoIng SEP. 5.2000 1:12PM NV.114 H.J-i (B) An application for a license must be made an a form provided by the City. (C) All applicants must be qualified according to the pttivi- sions of this ordinance. The application may request and dw ttppli. cant Shall provide such info=ation (inelcading fingerprints) as to miable the City to determine whether the applicant meets the quali- fications established in this ordinance. (D) if a person who wishvs to operate-a sexually oriented busi- ne w is an individual, the parson moat sign the application for a licamw as applicant. if a person who wWwN to operate a sexually oriented business is other than an individual, each individual who has a 20 percent or greater interest in the; busine" must sign the application for a license as applicant. Each;applicant mint be quali- fied under the following Section and each apnlimw shall be con,id- ered a lican9ee if a license is granted, (E) The completed application fora sexually oriented bustnu s license shall contain the fallowirtg information and ~hail be• acenrn- panied by the following docurnmts: (1) If the applicajtt is: (a) an individual, thu individual shall ststr his/her iegaI name and any aliases and submit proof that he;she is I8 years cif age; (b) a partnership, the partner- ship shall state its cumplete name, and the names of all partners, whether the partnership is general or limited, and a copy vf the partnership a6rc:ernent, if any; A der n etstw SOR CWittanre i� A: SentAl C.atn car� SEP. 5.2000 1: 13PM N0.114 P.38 (c) a corporation, the corpora- tion shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of its state of incorpora- tion, the names and eapocity of all officers, directors and principal stock- holders, and the name of the registered corporate agent and the address of the registered office for service of prmew. (2) If the applicant intends to oper- ate the sexually oriented businmi under a name other *.an that of the applicant; he or she trust state 1) the sexually ori- ented business's fictitious namu and 2) submit the requirad registration docu- ments. (a) Whether the applicant, nr a per- son residing with the applicant, has been convicted of a specified criminal activity as defined in this ordinance, and, if so, the specified criminal activity involved, the date. place, and jurisdic- tion of each. (4) Whether the appiwant, or a per- son residing with the applicant, bus had a previous license under this ordinance or other similar sexually oriented busi- ness ordinances from another city or county denied, suspended of revoked, including the name and location of the sexually oriented busines.s for which the permit was denied, suspended or revoked, ab well as the date of the denial, suspension or revocation, and i��tni C�nn+un�tr�s From Stria!! n►irrued Awt�tcun S y SEP. 5.2000 1: 13PM whether the applicant or a person resid. ing with the applicant has been a part- tier in a partneaNp or an officer, dicer" for or principal stockholder of a corpo- ration that is licensed under this ordi- nance whose license has previously been denied, suspended or revoked, including the name wd location of the sexually oriented busing for which the permit was denied, suspended or revoked as well as the date of denial, suspension or revmatian. (5) Whether the applicant or a per- son residing with the applicant holds arty other licenses under this ordinance or other similar sexually oriented busi- ness ordinance from another city nr county and, if so, the names and loca- tions of such other lictmsed businesua. (6) The single classification of license for which the applicant is filing, (7) Tl c iocadari of the proposed sex- ually oriented business, including a legal desc::vtion of the property, street address, and telephone numbe-(s), if any. (8) The applicant's mailing addrew and residential address, (9)A recent photograph of the appli- cant(s). (10) The applicant's driver's liccrm numbft Social Security number, and/or his/her state or federally issued tax identification number. AppmWx A. Sa ft e � �see o• SEP. 5.2000 1: 14PP1 0.114 40 (11) A .sketch or diagram showing the configuration of the premises, including a statement of Wal Raor space occupied by the business. The sketch or diagram need not be pmfemi;onaliy pre- pared, but it must be drawn to a designated scale or drawn with marked dimensiorw of the interior of the premis- es to an accuracy of plus or minus sit(h) itul'►es, (12) A current certificate and straight-line drawing prepared within thirty (30) days prior to application by a registered land surveyor depicting the property lines and the structures con- taining any existing sexually oriented businesses within feet of the property to be certified, the property lines of any established reli- gious institution,`synagogue, school, or public park or recreation area within I Beet of the property to be certified. For purposes of this Section, a use shall be considered exi8t- ing or established if it is in existmce at the time an application is submitted. (13) if an applicant wishes to oper- ate a sexually oriented butiir+ess, other than an adult motel, which small exhibit on the premises, in a viewing room or booth of less than orte hundred fifty (130) square feet Of floor space, films, video cos"ttes, other video reproduc- tions,or live entertainment which depict specified sexual activities or specified anatomical areas, then the applicant shall comply with the application mquirements+set forth In Section XI V, 13rotertin Comuniti'm Fran Sesuolf f g y O+Yert ai Swinews SEP. 5.2000 1:14PM (F) Before any appltcant may be Issued a sexually oriented business rmlployee license, the applkant shall submit on a form to be provided by the City the fallowing information; (1) The applicant's name or any other name ('including"stage" names)or aliases used by the individual; (2) Age,date,and place of birth; (3) Height, weight, hair and eye color; (4) Present residence address and telephone number; (S) Present bueineS.s address and telephone number; (6) Date, issuing state arc; number of driver's permit or other identification card information; (7) -Social Security number, and (8) Prooi that the individual is at least eighteen(18)Years of age. (G) Attached to the application form for a sexually oriented bttsinem employee license as provided above, shall be the fn1lowing: f l) r1 cedar photograph of the appU- cant clearly showing the applicant's face, and the applicant's finjerprinw an a loan provided by the police depart- Ment. Any few for the phutt*raphs and fingerprints shall be paid by the Applicant. Apprndir A. Saagpk Cemp^t1autWe S08 c7Nieonrr SEP. 5.2000 1:14PN N0. 114 P.42 (2) A statcrnent detalling the licoOse history of the applicant !or the five (5) Years immediately preceding the date of the tiling of the application+, including r whether such applimnt previously oper- ated or is seeking to operate, in this or any other county, city, state, or country has ever held a lioew,permit,ar autho- rization to do business denied, revoked, or suspended, or had any professional or vocational license or permit denied, revoked, or suspended. In the event of any such denial, revocation, or suspen- sion, state the name, the nasswc of the issuing or denying jurisdiction, and describe in full the reason for the denial, revocation, or suspension, A copy of anv order of denial, revocation, or sus- pension shall be attached to the application, (3) A statement whether the appli- cant has beer► convicted of a specified criminal activity as defined in this ordi- nance and, if so, the spedficd criminal activity, involver~', the date, p lacc and jurisdiction of eae% SECTION V. ISSUANCE OF LICENSE• (A) Upon the filing of m d application for a sexuWly oderted business emplovec license, the city shall issue a tcnttporiq licem to'said applicant. The applicatiettshall then be referred to the appropriate city departments for an investigation to be made on such information as is contained an the application. The appliCn- tinn proccsa shall bo completed within thirty (30) days from the date the completed application is filed. After the investiptium the Fin! i MU of i R d tN n�Con+ f eer Fr OM SczK, p tMAif WneM SEP. 5.2eOO 1: 15PM N0.114 P.43 • City shall issue a license, unless it ii deterrnincd by a pmponder. ance of the evidence that one or more of the following finding iy true. (1) The applicant has failed to pro- vide Wormstion reasonably necessary for louam of the license or haws falsely answered a question or request for information on the appUcation form; (2) The applicant is under the age of eighteen (18)years; (3)The applicant has been convicted of a "specified criminal activity" as defined in this ordinance; (4) The sexually oriented business employee license is w be used for employment in a business pcohil:ited by local or state law, statute, rule or regula- tion, or prohibited by a particular provi- sicn of this ordinance; or (5) The applicant has had a ,sexually oriented business e:nploycc license revoked by the City within two (2) years of the date of the current application. If the sexually oriented business employ+ce license is denied, the temporary license Previously issued is immediately deemed null and void. Denial, suspen- sion, or revocation of a license issued pursuant to this subsection shall be sub- ject to appeal 13 set forth in Section X. (9) A limme granted pursuant to th& section shall be subject to anatug renewal upon the written applicaition of the applicant and a luting by the City that the applicant has not!seen convicted of Appeals A. Searple CamWAene+ti SOIL vrdinmer, SEP. 5.ZWO 1:15PN N0.114 P.44 any specified criminal activity as defined in thin ordinance or committed any act during the existence of the previow lkwuou, which would be gmunds to deny the initial license application. The maewal of the license shall be subject to the payment of the fat- as got forth in Section VI. (C) Within 30 days after receipt of a completed sexuallyorkat• ed business appllcation,the City shall approve or deny the wants of a live= to an applicant, The City shall approve the issuam of a license to as applicant unless it is determined by a preponderance of the evidenm that cute or move of the following findings La eve! (1) An applicant i9 under eighteen (18) years of age. (2) Art applicant or a person with whorl applicant is residing is overdue in payment to the City of taxes, fees, fines, or penalties assessed agatmit or imposed upon him/her In re-lation to any businews. (3) An applicant has failed tn pra- vnde information reasonabiy neccsNaey for issuance of the license or has faiscly answered a' question or icqucst for information on the application form. (4) An applicant or a person with whom thv applicant is residing has beer denied a license by the City to csperate a sexually oriented busiress within the preccding nwvive (12) m=thti or whow2 license to operate a sexually oriented business has been revoked within the preceding twelve(12)tnondu. (5) An applicant or a person with whom the applicant is raiding has beer convicted of a s{to hed criminal activity defined in this ordinance, prnlncling Contnrumtay Foam inwlly clokalAI Aw+nr+ri SEP. 5.2000 1:16PN NU.114 r.4� (6) The prem1w. to be used for the sexually oriented business have not been approved by the health depart- ment, fire department, and the building official as being in compliance with applicable laws and ordimnces. (7) The Ikerm fee required by this ordinance has tint been paid. (8) An applicant of thu prupomd establishment is in violation of or is not in compliance with any of the provi- siorw of this ordimme. (0) The license, if granted shall state an its face the name of the person or persons to whom it is granted, the expiration date, the address of the sexually oriented business and +c classification for whidh the license is issues punsuant to Section III. All licenses shall be posted in a conspicuous place at or near the entrance to the se xu- ally oriented business so that they may he easily read at any time. (E) The health department, fire department, and the building; official shall complete their certification that the prerrtises is in Com- pliance or not in compliant® within twenty (20) days of recei-ot of the application by the Cry. M A sexually oriented busutess license Shall issue for only one classification as found in Section III. SECTION VI. FEES. (A) Every application for a sexually oriented business license (whether for a new license or for renewal of an existing license) shall be accompanied by a $ non-refundable application and invetsiigatiust kr. (5) In addition to the application and investigation fee required above, every sexually oriented business that is granted a ApNew4s A• �entr�k C dnePreltensim 900 Oodfrantr . SEP. 5.2000 1: 16PM N0.114 P.46 NJ W license (new or renewal) shall pay to the City an annual non- refundable Iken w. fee of 3 within thirty(30) days of license issuance or renewal. (C) Every application for a sexually oriented business employ- ee lichee (whether for a new licena+t or for renewal of an existing license) shall be accompanied by an annual non- refundable application,investigation ,and licensa fee. (D) All license applicatiomts and fees shall be submitted to the of the City. SECTION VIL INSPECTION. (A) An applicant of licanwe shall permit representatives of the Police Department, Health Department, Fire Department, Zoning Department, or other City departments, or agencies to inspect the premises of a sexually oriented business For then purposc of Ensuring compliance with the law,at any time it Ls occupied ar open for bubi- ne.%. (B) A person who operates a sexually oriented business or his agent or employee conurtits a misdemeanor if he refuses to permit such lawful inspection of the premi%s at any time it is opera for busines.m. SECTION Vtli. EXPIRATION OF LICENSE. (A) Each license shall expire orate yttz fmrn the date of issuance and may be renewed only by staking applicadun as provided in Section IV. Application for renewal shall be made at least thirty (311) days before the expiration date, and when made Ices than thirty Q0) days before the expiration date, the expiration of the license will not be affected. (5) Whert the City denies renewul of a license, the applicant vMU not be issued a licen.-m tot me year from the date of denial. M subuquent to dial.the City finds that the ba bi for denial of the renewal license has bean convcted or abatud. the applivnl any be g:anted a license If at least ninety (9M days have elapsed since the date datial Weame final. te+e � m►u Se:waNy l7ner►tcd gnats • SEP. 5.2000 1: 17PUl N0.114 P.47 S=ION DX. SUSPENSION. (A) The City shall suspend a license for a period not to exceed thirty (30) days if it determine; that a licenw, or an employes 0 a licensee has: (1) violated or is not in compliance with any section of this ordinance; (2) refused to &How an inspection of the sexually oriented business premises as authorized by this chapter SECTION X. REVOCATipN. (A) The City shall revoke a license if a cause of suspension in Section 1X occurs and the license has been suspended within the preceding twelve (12) months. (8) The City shall revoke a license if it dekerrnir+es that, (1) a licensee ga ve false ar mislead- ing information in the material submit- ted during the application process; (2) a lfcen4ec has knowingly allowed possession, use, or sale a! can- trolled substances on the premises; (3) a licensee has knowingly allowed prostitution on the premLses; 1 (4) a licensee knowingly operated t the asexually oriented business during a _ period of time when the licensee's license was suspended: (5) except in the Case of an adult i motel, a licensee has knkiwirgly allowed A it S� chmifue SM LW("ano,- PDK+� A: �e C�P' 1 SEP. 5.2000 1:17PN NU. 114 r.4d any act of sexual intercou-be, sodomy, oral copulation, masturbationf or other sex act to occur in or on the licensed prentim;or (6) a licertisee is delinquent in pay- ment to the City, County, or State for any taxes or fees past duc, (C) When the City revokes a license. the rwocation shall con- tinue tot one (1) year. and the license shall not bN issued a sexually oriented business license for one (1) year from the date the MvtVa- tion becarne effective. If, subsequent to revocaticm, the.C`ity finds . that the basis for the revocation has bekn corrected or abated, the applicant may be granted a license if at Ieast ninety (90) days have elapsed since the date the revocation became effective. (D) Aiter denial of an appiication, or denin1 of a renewal of an application, or suspension or revocation, of any license, the appli- cant: or licensee may seek pruttcpt judicial review of such adminis- trative action in any court of competent jurisdiction. The adminis- trative action.shall be promptly reviewer; by the court. SECTION XI, TRANSFER OF LICENSE. A Umnsee shall not trailsier 1us/her license to an;)thcr,nor shall a licensee operate a sexually oriented business tinder the authority of a license at any place other than the addre.m Jesignated in the application, SECTION XII. LOCATION OF SEXUALLY ORIENTED BUSINESSES. (A) A person commits a misdemeanor if that pemin operates or causes to be operated at sexually nriented business in any zoning di.Rtrict other than as defined and described in the zoning code. PM14h ins CAMMU W&IS Frapr Scrually Oriented 84411"aas SEP. 5.2eeD 1: 17PN N0.114 P.49 (3) A person commits an offense if the pe;nvan operates or causes to be operated a sexually oriented business within feet of: (1) A church, synagaguu, mosque:, temple or building which is used pri- marily for religious worship and related religious activities; (2) A public or private educational facility including but not limited to child day care facilities, nursery schools, preschools, kindergartens, elementary schools, private schools, intermediate schools, junior high schools, middle schools, high schools, vocotional schools,secondary schmAs,continuation schools, special education schools, junior colleges, and universities; school includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school; (3) A bauadary of a residential di.4- tric: as defined in the zoning code; (4) A public park Or recreational area which has been designated for park or recreational zctivitics including but not limited to a park, playground, mature trails, swimming pool, reservoir, athletdc field,basketball or ronnia causts, ped,estriani bicycle paths, wilderness areas,or other similar public land with- in the city which is under the control, operation, ur management of the city park and recreation authorities; . AnW A: 54P ix im 300(Witwow 1pIt�Y SEP. 5.2000 1:18PM N0. 114 P.50 (5) The property line of a tot devot- ed to a residential use as defined in the zoning code; (6) An entertainment I)UMMtis which is oriented primarily towards childr£n or family entertainment;or (7) A licensed premises, licensed pursuant to the alcoholic beverage con- trol regulatiorta of the State•. (C) A person connmit$ a misderneanor if that person causes or permits the operation, establishment, substantial enlargement, or transfer of ownership or-control of a sexually oriented business within feet of anathersexually oriented business. (D) A person commits a tr isdemeenuir if that persuri causeb or permits the operation, estabiishment, or maintenance of more than one sexually oriented business in the some building, structure:, or portion thereof, cr the increase of floor area of arty sexually orient- ed business in any building,structure,or portion thereof containing another sexually oriented business. (E) For the purpose of suvsocriun B or this Section, measure- ment shall be made in a straight line, without regard to the inter- vening gtruciures or objects, fennel the nearest portion of the build- ing or structure used as the part of the premises where a sexually oriented business is conducted, tn the nearest property line of the pmamises of a use listed in subsection B. Presence of a city, c11unty or other pofitical subdivision boundary shall be irrelevant for pur- poses of calculating and applying the distance requirements of this Section, (F) For purposes of sub-wticn C of this Section, the distance between any two sexually oriented businesw%shall be measured in a straight line, without regard m the intervening structurna or objects or political boundaries, froth the cl4t►tat exterior wall of the structure in which each business is located. ® PntRo rd Communism „r$erwl!v Unefrd Viemineum SEP. 5.2000 1: 18PM NQ.114 r.51 (G) Any sexually oriented business lawfully operating on . 199 that Is in violation o1 subfetion A through F of this Section shall be deemed a nonconforming use. The non- conforming use will be pemitted to continue for a period not to exceed one year,unless sotxter tern►inated for any Watson or volun. tarily discontinued for a period of thirty (30) days or more. Such nonconforming uses shall not be increased, enlarged, extended; or altered except that the use may be changed to a cortfoarmtng use. If two or more sexually oriented businesses arc within feet of one another and otherwise in a permimible location, the sex- ually oriented business which was first established and cvntiriuully operating at a particular location is the conforming use and the later-established busines (es)is/are nonconform ing. (H) A sexually oriented buainess lawfully operating as a con- forming use is not rendered a nonconforming use by the location, subsequent to the grar►t or renewal of the sexually oriented busi- ness license, of a use listed in subsection 3 of this Section within ..� het of the sexually oriented business. This provision applies only to the renewal of a valid license, and does not apply when an application fur a license is submitted after a license has expired or been revoked. SECTION X11I, ADDITIONAL REGULATIONS FOR ADULT MOTELS. (A) Evidence that a sleeping room in a hotel,motel,or a similar commercial establishments has been rented and vacated two or more times in a period of time that Ls less than ten (10) hours cre- ales a rebuttable presumption that the establishment is an adult motel as that total is defined in this ordinance. (B) A person commits a misdcrneanur if, as the person in con- trol of a sleeping room in a hotel, motel, or similar romrt+ercial estiblishment that does not have a sexually oriented license, he rents or ,submnts a sleeping roam to a person and, within ten (10) hours from the time the room is rented, he rents or subrents the. same sleeping moat again Apia* A: $s�x heesiw SOD rdce ��>� uran SEP. 5.2000 1:19PN N0.114 P.52 (C) For purposes of subnction (B) of this section, the terms "Mt" or "subrert" trean the act of permitting; a rerun to be otcu- pled for any forte of consideration. SECTION XIV. REGULATIONS PERTAINING TO EXHINMON OF SEXUALLY EXPLICIT FILMS. VIDEO$ OR LIVE EWER. TAINh ENT IN VIEWING ROOMS. (A) A person who operates or causes to be operated a sexually oriented business, other than an adult motel, which exhibits on the plremim in a viewing room of less than one hundred fifty (150) square feet of floor space, a film,video cassette, live entertairtatent, or other video reproducticm which depicts specified Rexuai activi- ties or spedfied anatomical areas, shall comply with fti following requirea+ents: (1) Upon application fora sexually oriented license, the application shall br accompanied by a diagram of the premises showing a plan thvreof speci• tying the location of are car more nun- ager`s stations and the location of all overhead lighting fixtures and desihwt- ing any portion of the premises in which patrons will not be pvrmitted. A m4n4 er's station may not exceed th:rty-two (32) square feet of floor area. The dia- gram shall also designate the place at which the permit will be concpicuuusly posted, if greened. A professionally pn:- pared diagram in the nature of an engi• neer's or architect's blueprint shall not be required; however, each diagram should be oriented to the north or to some designated street or object and should be drawn to a designated scale or with marked dimensions sufficient to show the various internal dimensions of ,ill areas of the ulterior of the prentiaes P► tali Contmum I r ai ll od� inttlli u sR Sc�rw y t7rrt+it w SEP. 5.2000 1:15PN N0.114 P.53 to an accuracy of plus or minus; six (6") lnchm- The City may waive the forego- ing diagram for renewal applications if the applicant adopts a diagram that was previously submitted *ad comif o that the configuration of the prevnins has not been altered since it was prcared, (2)The application shag be sworn to be true aced corroct by the applicant. (3) No alteration in the configura- tion or location of a manager's station may be made w i thout the prior approval of the City. (4) It is the duty of the licensed of the prerruses to ensure that at toast one licensed employee is on duty and situat- ed in each managers 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 patrun is permit• tad access for asey purpose, excluding re,)traoms, Restmoms may rust nintain video reproduction equipment, If the premises has two or more manager's stations designated, then the int&vr of the premises shall be configured in such a rnartner that there is in unobstructed view of each area of the premises to which any patron►is permitted accm. for any purpose from at least one of they tanager's stations, The view required Appmla'A: SMtpft Cexrprtbmoae S0i Urrlinaner SEP. 5.200a 1:20PM HIJ-114 in this eubsection must be by direct line of stght from the manager's station. (b)It shall be the duty of the licensee to t wure that the view area apreified in subsection (5) mnains wobstructed by any doors, curtains, partitions, waits, merchandise, display racks or other materials and,at all times,to ensure that no patron is permitted access to any area of the premises which has been desig- nated as an area in which patrons will not be permitted it+ the application tiled pur'uart to subsection (1) of this Section. (7) No viewing room may be occu- pied by more than one person at amy time. (9) The premises shall be equipped with overhead lighting fixtures of suffi• cient intensity to illuminate every place to which patrons are permitted access at an illuminaticn of not less than five (54) footcandles as measured at the floor level. (91 It shall be the duty of Lthe licensee to ensure that the illumination described above is maintained at all times that any patron is present in the premises. (10) No licensee shall allow open- mp of any kind to exist between view- ing rooms or booft. (11) No person shall make or attempt to make an opening of toy kind Fwleetill 0"111u1146"fmrrt Se2say OKMW 1lttltWAM SEP. 5.2©0Q 1:20PM N0.114 P.55 between viewing boof or nwm& (12) The licensee shall, during each business day, regularly inspect the walls between the viewing booths to deter- mine if stay openings or holes exist (13)The licensee shall caa-qe all floor coverings in viewing booths to be non- porous, easily cleanable aurfaces, with no fuss or carpeting. (14)The licensee shall cauw, al wall surfaces and ceiling surfam in mewing booths to be constructed of, or perma- nently covered by, nonporous, easily clearable material. No wood, plywood, composition board or other porous material shall be used within forty eight (48") inches of the floor. (B)A person having a duty under Subsection(1) through (14) of Subsection (A) above cominits a misdemeanor if he knowingly fails to fulfill that duty, SECTION XV. ADDITIONAL REGULATIONS FOR ESCORT l AGENCIES. i ! (A) An escort agency shall not employ any person under the I age of Is years. (D) A person commits an offense if the person acts as an escort or agrees to act as an escort for any person under the age of 18 years. 1 SEP. 5.zwo 1:ZOPM NO.114 P.56 `e SECTION XV1. ADDITIONAL REGULATIONS FOR NUDE MODEL STUDIOS. (A) A nude model studio shall not employ any Fwrsan under the age of Is years. (13) A person under the age of 1S years commits an offense if the person appem semi-nudv or in a stato of nudity in or on the premises of a .nude model studio. It is a defense to prosecution under this subsection if the person under 19 years was in a restroaen not open to public view or visible to any other person. (C) A person commits an offerer if the perm appears in a state of nudity, or knowingly allows anotlwr to appear in a state cif nudity in an area of a nude model studio pmrnis s which can be viewed from the public right of way. (D) A nude model studio shall not place pr permit a bed, sofa, or mattress in any mom on the premises. except that a sofa may be placed in a reception roam open to the public. SECTION XVII. ADDITIONAL REGULATIONS CONCERN- ING PUBLIC NUDITY. (A) it shall be a misdemeanor for a person who knowingiy and intentionally, in at sexually oriented business, appear~ in a state of nudity or depicts specified sexual activities. M It shall be a misdemeanor for a person who knowingly ar intentionally in a sexually oriented business appears in a semi-nude condition unless the person is an employee who, while stetni-nude, shall be at east ton (10) feet fmrn any patrun or customer 4nd (in a stage at least taro feet from the floor. (C) It shall be a rnisdemeancr for an empinyec, while sami- nude in a sexually oriented business, to solicit any pay or gratuity horn any patron or customer or for any patrw or emstomer to pay or give any gratuity to any employee, white said emplaym is ami- nudc in a sexually oriented business. Ptw�c�in�CdamY111rIL�i�'MMI:S,sw11y Urithl+d Nu.naie� ] -,SEP. 5.2000 1:21PN N0.114 P.57 • i 1 (D) It shall be a misdemeanor for an employee, while semi. nude,to touch a customer or the clothing of a customer. i SECTION X'VIII. PROHIBITION AGAINST CHILDREN IN A SEXUALLY ORIENTED BUSINESS. A person commits a misdemeanor if the pumon knowingly allows a person under the age of IS years an the premises of a sexu- ally oriented business. SECTION XIX. HOURS OF OPIERATION. No sexually oriented businas, except hir an adult nwiel, may remain open at any time between thq hours of tine o'clock (1:(X)) A.M.and eight o'clock(8-.W)A.M, on weekdays and Saturdays, and one o'clock(1:00)A.M.and noon (12:M) P.M. on Sundays. SECTION XX. EXEMPTIONS. (A) It is a defense to prosecution under Section XVI1 that a person appearing it a state of nudity did so in s modeling clays operated- (1) by a proprietary schuul, liccrised by the State of ; a college,junior college,or university sup• ported entirely or partly by taxation; M by s pri MC college or univer9ity which wintains and operates eduea. tional programs in which credits are transferable to a college, junior college, or university supported entimly or part- ly by taxdtnm;ur (3) in a structure: (a) which has no sign visible from the exterior of the structure acid no AFprniix Ar ,q+n+gsly Goatfrrehriaitr SOS 04nAncr .SEP. 5.2000 1:21PM N0.114 P.58 Y other advertising that Indicates a nude person is avaUble far viewing;and (b) where, in order to partici- pate in a class a student must enroll at least three (3) days in advance of the class;and (c) where no atone than one nude model is on the premises at any one time. SECTION XXL iNrUNMON. A person who operates or causes to be operated a sexually ori- ented business without a valid licemse or in violation of Section Xli of this ordinance is subject to a suit for injunction as well as prose- cutinn for criminal violatioms. Such violations shall be punishable by a fine of S200.D0 or thirty (30) days imprisonment. Each day a sexually oriented business so operates is a separate offense or violation, SECTION XXII. SEVERABILITY. if any section, subsection, or clause of this ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections,subsections,and clauses shall not be affected. SECTION=If. CONFLICTING ORDINANCES REPEALED. All ordinances or paz of ordinances in cowlict with the pravi- sions of this ordinance are hereby rapealed. SECnf)N XXIV, EFFECTIVE DATE. This ordimnce!shall be enforced from and after NotmOng Caa+manitirs Fnmr Sexually OrimW BiWm ass (15) August 7, 2000 - Council/Agency Agenda - Page 15 F. Administrative Items - None G. Ordinances G-1. (City Council) Introduction of Ordinance No. 3469 to Amend HB Municipal Code Relating to Public Nudity and Introduction of Ordinance No. 3470 to-Amend HB_ Municipal Code Relating to Penalty for Sex Oriented Business Regulations Violations are Planned to be Considered at the September 5, 2000 Council Meeting (640.10) (Communication dated August 3, 2000 from the City Attorney's Office regarding Ordinance No. 3469 and Ordinance No. 3470.) [Deferred consideration of Ord. No. 3469 & 3470 to Tuesday, September 5, 2000; 6-0-1 (Harman absent)] H. City Council/Redevelopment Agency Items H-1 a. Submitted by Mayor Dave Garofalo (City Council) Appoint Ad Hoc Council Committee to Work with Wetlands_and Wildlife Care Center of Orange County (120.25) Communication from Mayor Dave Garofalo submitting the following Issue: The Wetlands and Wildlife Care Center of Orange County. Recommended Action: Motion to: 1. Appoint an Ad Hoc Council committee to work with the Huntington Beach Wetlands and Wildlife Care Center of.Orange County; and 2. Report back in 30 days with recommendations. [Appointed Green, Dettloff, Garofalo with Bauer as alternate; 6-0-1 (Harman absent)] H-1 b. Submitted by Mayor Dave Garofalo (City Council) Direct Staff to Report on Street Sweeping and Parking_Citation Enforcement and Coordinate with Managed Competition Committee (120.90) Communication from Mayor Dave Garofalo submitting the following Issue: Street sweeping and parking citation enforcement. Recommended Action: Motion to: Per Council policy, which requires a vote of Council to direct staff to prepare reports involving 4 or more hours of staff time, it is requested that Council approve the following: 1. Report on parking citations issued in the six months prior to twice per month street sweeping (on a monthly basis), and citations issued each month since we have instituted twice per month sweeping; and 2. Report anticipated cost for second citywide sweeping and expected or annual revenue from parking citations; and 3. Coordinate this effort with the Managed Competition Committee. [Approved 6-0-1 (Harman absent)] Page 18 - Council/Agency Agenda—July 17, 2000 G-2.' Ordinances for Introduction G-2a. (City Council) Deferred from July 5 2000—Approve Introduction of Ordinance No. 3469 to Amend HB Municipal Code Relating to Public Nudity and Approve Introduction of Ordinance No. 3470 to Amend HB Municipal Code Relating to Penalty for Sexual Oriented-Business Reg_ulations Violations (640.10) 1. Ordinance No. 3469— "An Ordinance of the City of Huntington Beach Amending the Huntington Beach Municipal by Repealing Chapter 9.36 Relating to Indecent Exposure and Adding Chapter 9.37 Pertaining to Public Nudity and Findings in Support Thereof." and 2. Ordinance No. 3470-"An Ordinance of the City of Huntington Beach Amending Chapter 5.70 of the Huntington Beach Municipal Code Relating to Penalty for Violation of Regulations and Findings in Support of Chapter 5.70." *** Communication submitted by the Office of the City Attorney—Adult Uses—Published Cases. *`* Communication dated July 10, 2000 from David M. Swerdlin, Swerdlin and Associates in opposition to Ordinance No. 3469. Recommended Action: After City Clerk reads by titles, approve introduction of Ordinance No. 3469 and No. 3470 by roll call vote. [Approved Introduction of Ord. Nos. 3469 & 3470; 7-0] H. City Council/Redevelopment Agency Items H-1. Submitted By Council/Agency Member Dave Sullivan (City Council) Reconsider Specific Plan No. 13= "The Crossings" at H. B. Center Mall to Allow Drive-Through Bakery Use (450.30) Communication from Councilmember Dave Sullivan regarding the following Statement of Issue: On July 5, 2000 the City Council adopted the Crossings at Huntington;Beach Specific Plan No. 13 (Zoning Map Amendment No. 00-01/Zoning Text Amendment No. 00-02) and eliminated drive-through businesses as permitted uses in the regional commercial mall. After giving additional thought to the merits of drive-through uses at the Huntington Beach mall property, it is requested that the City Council reconsider its action with respect to drive-through uses only. Recommended Action: Motion to: Reconsider the previous approval action of the Crossings at Huntington Beach Specific _.. Plan at the July 5, 2000 meeting and modify the approval to allow one drive-through bakery within the 63 acre property. - [Motion to reconsider— Approved 6-0-1 (Garofalo abstain)] [Motion to set for Public Hearing on 08-07-00 — Approved 6-0-1 (Garofalo abstain)] Ji CITY OF HUNTINGTON BEACH Inter-Department Communication C To: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL c 8-5 From: GAIL HUTTON, City Attorney Date: August 3, 2000 ` ° Subject: ITEM G-1, COUNCIL MEETING OF AUGUST 7, 2000; r.. SEX-ORIENTED BUSINESSES AND ANTI-NUDITY ORDINANCES As you have seen from your Agenda, the above-referenced matter is being deferred to the City Council meeting of September 5, 2000. This delay is occasioned by the fact that on July 27, 2000, the United States Court of Appeals for the 9th Circuit handed down the case of Alameda Books v. City of Los Angeles, 2000 WL 1047892 (9th Cir.(Cal.)). The case involved a sex-oriented business in the City of Los Angeles. The court determined in part that the findings upon which Los Angeles had based its actions were inadequate and the ordinance was therefore unconstitutional. The City Attorney is concerned that the decision may have applicability to the situation in our city. We are planning immediately to review our findings and proposed ordinances in light of the Alameda Books case. While it is true that a so-called "pasties and G-string" ordinance was upheld in Tily B v. City of Newport Beach, that case was a state court decision and the Alameda Books case was decided by the Federal Court. In any event, the cases do not address identical issues. Prior to this decision being handed down, we had planned to request that you reintroduce the sex-oriented-business ordinance as we had made some changes since the last council meeting on July 17, 2000. We had planned also to ask you to defer consideration of the anti-nudity ordinance so that both ordinances could go to second reading and be adopted at the same time. If that still is our intention after our legal analysis, we will have the matter properly agendized in a timely fashion. GAIL HUTTON City Attorney cc: Ray Silver, City Administrator Ron Lowenberg, Police Chief / gh/00memo/MayorMS013 8-3 July 10, 2000 �''` ` ' L t The Honorable Mayor Garafalo and Members of the City Counci P City of Huntington Beach 2000 Main Street Huntington Beach, Ca. 92648 Re: Proposed Ordinances 3469 for City Council Agenda July 17, 2000 Dear Mayor Garafalo and Members of the City Council: As a governmental relations and entitlement consultant retained by Talbert & Beach, Inc., I wish to present some thoughts regarding the proposed adoption of Ordinance 3469 pertaining to Public Nudity. I have been retained to speak to the issue of well-crafted ordinances, and not sex-oriented businesses. As a current City Council Member and former Mayor of the City of San Juan Capistrano, I know that cities must allow for sex-oriented businesses because of State and Federal mandates. Further, as an Executive Board Member of the California Joint Powers Insurance Authority, I am also sensitive to the actions that Cities can sometimes take that on the surface seem appropriate but result in unintended consequences because of poorly crafted city ordinances. The Proposed Ordinance 3469 is crafted in such a way as to result in consequences unintended to its purpose of restricting nudity in public for the Health, Safety, and Welfare of its citizens. First, it addresses nudity in parks, playgrounds, and beaches; areas that have open access to the public (men, women, and children) as a whole. It then proceeds to lump in tightly regulated sex-oriented adult businesses that are open only to (consenting) adults, and certainly not to minors under the age of 18. Lastly, the right of a woman to breast feed in public is limited to (her?) children under the age of 2. Cited as one of its findings for both Ordinance 9.37.020 and 9.37.030 is the U.S. Supreme Court case of City of Erie v. Pap's A.M. that is doubtful in its application to the Flamingo Theater (refer to Mr. Garrou's letter of July 5, 2000). While disallowing public nudity in parks, playgrounds, and beaches is in the public interest and necessary to protect and promote the public health, safety and welfare, it is doubtful such a finding can be made in a tightly regulated site such as a sex-oriented business that has been approved since 1999, but not yet opened. The unintended consequences of Ordinance 3469 if the courts rule against the city will be to: 1) cost the taxpayers of Huntington Beach hundreds of thousands of dollars in litigation fees and plaintiffs fees; 2) result in having no ordinance dealing with public nudity; and, 3) cause a negative effect on the similar efforts of all other cities attempting to deal with this issue. And perhaps a rg eater unintended consequence is the codifying of what women or men (including minors) can wear in public parks, playgrounds, and beaches. That clothing must cover the nipples and/or areola of breasts of women of any age (including infants) with only a"pasty" (at a minimum), and a"g string" type of bottom to cover his or her genitals, vulva, anus, pubic hair, perineum, or cleft of the buttocks in order to comply with Proposed Ordinance 9.37.020 (a), (b), and (c). A woman, whether a minor or an adult, could dress in such a fashion at any public park, playground, or beach, or any other area open to the public, and be in compliance with the Proposed Ordinance 3469. Finally, there is the unintended consequence that approval of this ordinance that will be to cause Talbert & Beach, Inc., to seek a liquor license and open as a topless bar instead of a"nude juice bar". In summary, the Proposed Ordinance 3469 is poorly crafted to meet its intended purpose of restricting nudity in public for the Health, Safety, and Welfare of its citizens. Please, Mayor Garafalo and Members of the City Council, do not adopt the poorly crafted Proposed Ordinance 3469. Sincerely, DAVID M. SWERDLIN Swerdlin & Associates 31125 Via Cristal San Juan Capistrano, Ca. 92675 1-949-493-0526 cc: G. Randall Garrou J CITY OF HUNTINGTON BEACH MEETING DATE: July 5, 2000 DEPARTMENT ID NUMBER: CA 07-00 Council/Agency Meeting Held: e er ontinued pproved ❑ Conditionally Approved ❑ Denied Cam+ t I Signature Council Meeting Date: July 5, 2000 Department ID Number: CA 07-00 o, jx�,rvb CITY OF HUNTINGTON BEACH Co�S�i 'ta ri o* a Itb •14e.346' REQUEST FOR ACTION W o 34'1* To 9-6-po j p -rib �O-a, 4 (tea+ A3W�'� SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS a G SUBMITTED BY. GAIL HUTTON, CITY ATTORNEY and 4 � RAY SILVER, CITY ADMINISTRATORarg3y6` PREPARED BY: VAI1_ HUTTON, CITY ATTORNEY 0�0 r, �. -) RONALD E. LOWENBERG, CHIEF OF POLICE X__ SUBJECT: Establishing Public Nudity Prohibition and M di ' ation of Penalties and Findings for Violation of Sex Oriented Business Regulations Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status, Attachment(s) Statement of Issues: Should the City establish a City-wide prohibition of public nudity and enforce all sex oriented business regulations civilly and should the City adopt additional findings in support of the existing sex oriented business ordinance? Funding Source: None. Recommended Action: 1. Adopt Ordinance No. 310 repealing Huntington Beach Municipal Code Chapter 9.36 relating to indecent exposure. 2. Adopt Ordinance No. 34 adding Chapter 9.37 pertaining to public nudity. 3. Adopt Ordinance No. 3`l71) amending Huntington Beach Municipal Code Chapter 5.70 limiting enforcement of sex oriented business regulations to civil remedies, making minor language changes and adopting findings which support the existing ordinance and the ordinance as amended. SOBRCA -2- 6/23100 2:47 PM REQUEST FOR ACTION MEETING DATE: July 5, 2000 DEPARTMENT ID NUMBER: CA 07-00 Alternative Action(s): Do not adopt Ordinance Nos. ' 49 and 3ra , do not repeal Chapter 9.36 and do not adopt findings. Analysis: In May, 1999, City Council considered an amendment to Huntington Beach Municipal Code to prohibit public nudity. Upon advice of the City Attorney, the City Council elected to delay the amendment pending the outcome of litigation on the state and federal levels. On March 29, 2000, the United States Supreme Court released its decision in the case of City of Erie v. Pap's A.M. ("Kandyland'), validating Erie's right to ban all public nudity despite its "de minimus" effect on the expressive element of nude dancing. The plurality opinion in Kandyland (Justice O'Connor joined by three other Justices) held that the City of Erie properly relied on the negative secondary effects associated with nude dancing to support the ban on public nudity. In reaching this decision, a majority of the Court held that public nudity was not inherently expressive conduct, and public nudity ordinances are not "content based" restrictions on speech that are subject to "strict scrutiny" by the Court. Instead, a majority of the Court agreed to test the constitutionality of public nudity ordinances under a less exacting standard applicable to content neutral restrictions on symbolic speech. Under this standard, a public nudity ordinance is constitutional if it furthers a "substantial" government interest. The plurality opinion by Justice O'Connor concluded that Erie's public nudity ordinance passed this constitutional test based on the City's reliance on studies demonstrating the negative secondary effects associated with sex oriented businesses. The plurality held that the City need not conduct its own tests, but also noted that Erie did in fact produce evidence of local negative secondary effects during public hearings on the ordinance. The plurality further held that a public nudity law, such as the proposed ordinance here, that requires g-strings and pasties on otherwise nude dancers, sufficiently furthers the governmental interest in diminishing negative secondary effects, and complies with the constitutional requirement that the restriction be no greater than necessary to further the city's interest. Similarly, the city of Newport Beach was successful in defending their ordinances requiring exotic dancers to wear "g-strings and pasties." This is the subject of a published decision titled Tily B. v. City of Newport Beach, commonly referred to as "Mermaids." The proposed ordinance adding Huntington Beach Municipal Code Chapter 9.37 will establish a prohibition of public nudity in all places open to the public, including bars and restaurants, parks, beaches, and playgrounds. It will be enforceable against all existing SOBRCA -3- 6/22/00 4:25 PM REQUEST FOR ACTION MEETING DATE: July 5, 2000 DEPARTMENT ID NUMBER: CA 07-00 and future Sex Oriented Businesses. Consistent with Kandyland, the public nudity ordinance recites the negative secondary effects associated with nude dancing. Because of the possibility that State Penal Code preempts any City criminal regulations, it is recommended that violations of the public nudity ordinance be civilly enforced. The Kandyland decision specifically deals with the Federal First Amendment issues. However, in California, there is still some question regarding preemption of criminal enforcement related to the regulating of sex oriented businesses. For example, the City of Anaheim was involved in two separate cases where the dancers successfully contended that the City could not criminally enforce nudity regulations that overlap State Penal laws related to sexual conduct. Alternatively, the success of the City of Newport Beach in its civil enforcement efforts suggests that non-criminal enforcement mechanisms, such as administrative citations and civil injunctions, avoid the preemption issue and comport with the recent Supreme Court decision. Based on similar concerns related to preemption, the City Attorney also recommends amendment of Huntington Beach Municipal Code Chapter 5.70 regulating Sex Oriented Businesses. The amendment modifies the penalty section of the ordinance making all violations of the chapter civilly enforceable. Two other proposed amendment have been made as well. The first, to Section 5.70.030, deletes the requirements that certain stock holders of a corporate applicant complete the Sex Oriented Business application as well. Relevant case law indicates that a city may require the disclosure of officers and directors of a corporation, as these individuals are responsible for the management and control of the Sex Oriented Business facility, but not of principal stock holders. The second change is in the hours of operation. It is recommended that the ordinance permit Sex Oriented Businesses to remain open until 2:00 a.m., instead of the current 11:00 p.m. The City Attorney's office recommends this change in light of recent case law and given the likelihood that the Sex Oriented Businesses must comply with a new anti-nudity ordinance proposed concurrently with the Sex Oriented Business ordinance here. Further, it is recommended that the City Council carefully review the factual findings and adopt them in support of Chapter 5.70 and the proposed amendments to it and Chapter 9.37. These findings will not be codified in the Municipal Code, but will remain on file in the City Clerk's Office for public inspection. Environmental Status: Not applicable. SOBRCA -4- 6/28/00 5:20 PM REQUEST FOR ACTION MEETING DATE: July 5, 2000 DEPARTMENT ID NUMBER: CA 07-00 Attachment(s): City Clerk's Page Number No. Description 1 Ordinance No. repealing Huntington Beach Municipal Code Section 9.36 and Adding Section 9.37 2 Legislative Draft of H.B.M.C. 9.36 3 Ordinance No. ( 70 amending Huntington Beach Municipal Code Section 5.70 4 Legislative Draft of HBMC 5.70 SOBRCA -5- 6/28/00 5:23 PM b9/U' Is 3 ORDINANCE NO. S469 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING THE HUNTINGTON BEACH MUNICIPAL BY REPEALING CHAPTER 9.36 RELATING TO INDECENT EXPOSURE AND ADDING CHAPTER 9.37 PERTAINING TO PUBLIC NUDITY AND FINDINGS IN SUPPORT THEREOF The City Council does hereby ordain as follows: SECTION 1. Findings. The following findings are hereby adopted in support of Chapter 9.37 and the amendments thereto. The findings shall not be codified. Findin,s. 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. In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. Nudity in the public park has resulted in numerous arrests for violations of the California Penal Code related to public fornication and lewd acts. These crimes have occurred after public exposure of gentialia and in areas open to the general public. Citizen complaints have been received by the Police 00ordinance/mc9-37nudity/6/22/00 I Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity. 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 adult use businesses and nudity in public have extensive negative secondary effects. The City of Anaheim has obtained criminal convictions of patrons of adult use 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 adopting these findings in support of Chapter 5.70, the City Council is mindful of legal principles relating to the regulation of public nudity and 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 public nudity and 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 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993), cert. 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 dacksonville, 973 F.2d 1255 (5th Cir. 1992);International Eateries v. Broward County, 941 F.2d 1157 (llth Cir. 1991), cert. 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.). The City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity did not result in majority opinions. (City of Erie v. Pap's A.M. 00ordinance/mc9-3 7nudi ty/6/22/00 2 ("Kandyland'), 120 S.Ct. 1382 (2000); Barnes v. Glenn Theater, 501 U.S. 560, 111 S.Ct. 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.App.4th 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 finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; persons utilizing said places by appearing thereon without clothing and/or with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling other public health, safety and welfare obligations; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct. The City Council recognizes the possible harmful effects on children and minors exposed to public nudity and to the effects of sex-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.) 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 public nudity and 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 takes legislative notice of the facts recited in the case 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.App.4th 1, regarding how live sex-oriented entertainment facilities result in secondary effects such as prostitution, drug dealing, and other law enforcement problems. 00ordinance/mc9-37nudity/6/22/00 3 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), cent. 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. 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. SECTION 2. The Huntington Beach Municipal Code is hereby amended by deleting Chapter 9.36 thereof. SECTION 3. The Huntington Beach Municipal Code is hereby amended by adding Section 9.37 pertaining to public nudity. Chapter 9.37 PUBLIC NUDITY Sections: 9.37.010 Intent and Purpose 9.37.020 Prohibition related to Parks, Playgrounds, and Beaches 9.37.030 Prohibition related to Place Open to the Public or Open to Public View. 00ordinance/=9-37nudity/6/22/00 4 9.37.040 Persons as Accessories 9.37.050 Exceptions 9.37.060 Violations, Penalties and Enforcement. 9.37.010 Intent and Purpose. The intent and purpose of this chapter is to guarantee that places open to the public in the City of Huntington Beach, including parks,playgrounds, and beaches owned and maintained by the City of Huntington Beach are operated and maintained for the use, benefit, recreation, and enjoyment of all citizens and residents of the City as well as to eliminate, to the greatest extent possible,the secondary effects associated with the presentation of nudity in sex oriented businesses. 9.37.020 Prohibition related to Parks, Playgrounds, and Beaches. It shall be unlawful for any person to appear,bathe, sunbathe, walk or be on any public park, playground, beach or in the water adjacent thereto, or on any private property open to public view from any public beach, playground,park,public place or public right-of-way in such a manner so as to knowingly and intentionally: (a) Expose his or her genitals, vulva, anus,pubic hair, perineum, or cleft of the buttocks; (b) Expose the nipple of either female breast and/or areola except as necessary while engaging in the breast feeding of an infant under the age of two years old; (c) Expose any device, costume or covering which gives the appearance of or simulates the genitals, vulva, anus, pubic hair, perineum, cleft of the buttocks, or nipple and/or areola of the female breast. 9.37.030 Prohibition related to Place Open to the Public or Open to Public View. It shall be unlawful for any person to appear, serve food or drink,perform, walk or be in any place open to the public or open to public view in such a manner so as to knowingly and intentionally: (a) Expose his or her genitals, vulva, anus, pubic hair,perineum, or cleft of the buttocks; (b) Expose the nipple of either female breast and/or areola except as necessary while engaging in the breast feeding of an infant under the age of two years old; (c) Expose any device, costume or covering which gives the appearance of or simulates the genitals, vulva, anus, pubic hair, perineum, cleft of the buttocks, or nipple and/or areola of the female breast. 9.37.040 Persons as Accessories. It shall be a violation of this Chapter for any principal, including but not limited to any owner, manager, or person with managerial or supervisory control, 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. 00ordinance/mc9-37nudity/6/22/00 5 9.37.050 Exceptions. This chapter shall not apply to children under the age of ten years. 9.37.060 Violations, Penalties and Enforcement. 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; (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 owner, manager, or person with managerial or supervisory control, 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. (d) 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 4. 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 day of , 2000. Mayor ATTEST: APPROVED AS TO RM: City Clerk City Attorney REVIEWED AND APPROVED: 4,4306 _ 1NI ED AND APP ED: City A inistrator Police Chief 00ordinance/mc9-37nudity/6/22/00 6 mi Old Ordinance No. LEGISLATIVE DRAFT Chapter- 9.36 TATTIR('ENT EXPOSURE OF WAITRESSES AND ]PERFORMERS i o,.t;,.c �s o 36 020 Theater-define-' 9.36.040 Topless prohibited 9.36.050 Po,.s fl- under-of the Penal Code. All Wer-ds used in this ehapter-whieh also are used in seetions 318.5 and 318.6 are used in the same sense and mean the same as the same r-espeetivewer-d used in sections 318.5 9.36.020 Theater-defined. As used in this ehapter- and in seetions 318.5 and 318.6 of the Penal �j�, "theater-2 means a building, playhouse, feem, hall or-other-place having a peffflaflent stage peFmanently affixed seats so afTanged that a bedy ef spectators can hm,e tmebstn'teted view 0 lieense for-a thea4er-is in fid! fefee �fp-^+ 'rhis definition does not super-sede the. of seetion 9.36.010 of this eode. (1635 3/71) while engaging in the bfeast feeding of an infant the age of t,, e years old;( .36.030 Bottomless bitocr E i �cilty-vf-c MISDEMEANOR, he (a) Exposes his or-her-genitals, vulva, antts, pubie haiF or eleft of the butteeks or- employs an deviee or-eever-ing whieh is intended to simulate the genitals, vulva, antis, pubie hair-of eleft of the butteeks while participating in any live aet, demenstr-ation of exhibition in any publie plaee pl.,ea open to the p,,blie o plaee open to public view, er-while s g food or-.1,-ink eF 1 eth t (b) Pefmits, pr-eeur-es or assists an),per-son to so expose himself or-her-self-, OF tE) efHp!Oy aH�,stleh device (1 63 G 2/'71) 9.46.040 T- -hibited. Every,female is guilty of a MISDEMEANOR whe, while ig in any live aet, demonstration or-exhibition in any publie plaee,plaee open to the public or plaee open to publie view, or-while sen,ing food or-drink Of bOth tE) all)'ettstoMef, legisdrft/mc9-36/6/13/00 I (a) Exposes the nipple of either-breast and/or-that pai4ion of either-breast whieh eefltigtletlsl� surrounds the nipple and whieh is of a different na4tir-al pi- han the main poi4ioa e :the f bo st(e))Alear-s any type of elething so th a of stieh pai4 of the breast may be observed. (1635 3/71) >eatinsels E)r-assists any. )late any pr-ovision of this chapter, (163 5 34 1) (a) A theater-, eoneeft hall or-similar- establishment whieh is pr-imar-ily devoted to theatr-ieal r (b) Any et-a-umer-izeE or-prohibited by any sta4e-sta4ute (1635 3/71 legisdrft/mc9-36/6/13/00 2 0ia, �.,, ,.. A� ORDINANCE NO. 3 q 2 o AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 5.70 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO PENALTY FOR VIOLATION OF REGULATIONS AND FINDINGS IN SUPPORT OF CHAPTER 5.70 The City Council 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. In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. Nudity in the public park has resulted in numerous arrests for violations of the California Penal Code related to public fornication and lewd acts. These crimes have occurred after public exposure of gentialia and in areas open to the general public. Citizen complaints have been received by the Police Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity. 00ord/mc570-o 1 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 businesses and nudity in public 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 public nudity and 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 public nudity and 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 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993), cert. 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 (1 lth Cir. 1991), cert. 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.). The City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity did not result in majority opinions. (City of 00ord/mc570-o 2 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).) 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 finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; persons utilizing said places by appearing thereon without clothing and/or with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling other public health, safety and welfare obligations; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct. The City Council recognizes the possible harmful effects on children and minors exposed to public nudity and to the effects of sex-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.) 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), cent. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.AppAth 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 public nudity and 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 takes legislative notice of the facts recited in the case 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 result in secondary effects such as prostitution, drug dealing, and other law enforcement problems. 00ord/mc570-o 3 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. 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 (111h Cir. 1999); and City of Colorado Springs v. 2354Inc., 896 P.2d 272 (1995). SECTION 2. Section 5.70.010 of the Huntington Beach Municipal Code is hereby amended for clerical consistency only, to read as follows: 00ord/mc570-o 4 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 specifies anatomical areas. (b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee. (c) Distinguished or characterized b a�phasis 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) Owner or Permit holder or Permittee. "Owner", 'Permit holder" or "Permittee" means any of the following: (1) the sole proprietor of a Sex Oriented Business; or (2) any and all individuals owning a twenty percent (20%) or greater equitable interest, including any community property interest, in the Sex Oriented Business. (3) 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. For purposes of this Chapter, "corporation" shall also include not for profit corporations and limited liability corporations. (f) Performer. 'Performer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas. (g) 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 00ord/mc570-o 5 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. (h) 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. (i) 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. (j) 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 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 00ord/mc570-o 6 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. (k) 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." (1) 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. (m) 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. (n) 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. 00ord/mc570-o 7 (o) 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 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. (p) 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. (q) 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, 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. 00ord/mc570-o 8 (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. (r) 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. (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 for content, said section 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. (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. 00ord/mc570-o 9 (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, 2661, 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, and each stockholder holding more than twenty percent (20%) of the stock in the corporation, including community property interests. 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. (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. 00ord/mc570-o 10 (3) The address to which notice of action on the application is to be mailed. (4) The name(s) of the responsible person(s) 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. (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. SECTION 4. Section 5.70.100 of the Huntington Beach Municipal Code is hereby amended for content, said section 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. (3) Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs 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 areas" or "specified sexual activities." (b) General Provisions 00ord/mc570-o I 1 (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 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 guard required 00ord/mc570-o 12 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 00ord/mc570-o 13 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 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 00ord/mc570-o 14 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. (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 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: (i) performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (ii) 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. 00ord/mc570-o 15 SECTION-7.. 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 day of 52000. ATTEST: Mayor City Clerk APPROVED AS TO FORM: zz REVIEWED AND APPROVED: ,Pt Attorney &,33 / �,���60 a�I s�.�.�•�•rit INIT;ATED AND APP O E19D: City inistrator Police Chief 16 OOord/mc570-o/6/22/00/3:42 PM ,:;r- w '' Hm ..fn.... �`, �'�<N. nip/ y,<y�•y;h.,��+ SE c k ,r•, F' r,3f ll 'f l'1aLi6. Ordinance No. LEGISLATIVE DRAFT Chapter 5.70 Findings 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. In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. Nudity in the public park has resulted in numerous arrests for violations of the California Penal Code related to public fornication and lewd acts. These crimes have occurred after 1egisdrft/mc570/6/28/00/4:19 PM 1 public exposure of gentialia and in areas open to the general public. Citizen complaints have been received by the Police Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity. 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 and nudity in public 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 public nudity and 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 public nudity and 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. 5609 111 S.Ct. 24569 115 L.Ed.2d 504 (1991); FW/PBS, Inc. v. Dallas, 493 U.S. 2159 110 S.Ct. 5969 107 L.Ed.2d 603 (1990); City of Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 9259 89 L.Ed.2d 29 (1986); and Young v. American Mini Theaters, Inc., 427 U.S. 509 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), cent. 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 1egisdrfdmc570/6/28/00/4:19 PM 2 (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 1 (1998); City of National City v. Wiener, 3 CalAth 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), cent. 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 (llth 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.). The City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity 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. 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 finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; persons utilizing said places by appearing thereon without clothing and/or with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling other public health, safety and welfare obligations; that the presence of persons who are unclothed and 1egisdrft/mc570/6/28/00/4:19 PM 3 exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct. The City Council recognizes the possible harmful effects on children and minors exposed to public nudity and to the effects of sex-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.) 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), cent. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.AppAth 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 public nudity and 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 takes legislative notice of the facts recited in the case of Key, 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 result in secondary effects such as prostitution, drug dealing, and other law enforcement problems. 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 3259 329 (4th Cir. 1996), cent. 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 1e0sdrfdmc570/6/28/00/4:19 PM 4 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), cent. 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. 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 1239131- 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 (111h Cir. 1999); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995). Iegisdrfdmc570/6/28/00/4:19 PM 5 Chapter 5.70 SEX ORIENTED BUSINESSES (2523-12/81, Urg. Ord. 3341-10/96, 3431-7/99) Sections: 5.70.05 Purpose 5.70.010 Definitions 5.70.015 Statements And Records 5.70.020 Permit Required 5.70.030 Application For Sex Oriented Business Permit 5.70.035 Sex Oriented Business Permit Issuance 5.70.040 Sex Oriented Performer Permit 5.70.045 Sex Oriented Performers Permit Issuance 5.70.050 Applicant To Appear 5.70.055 Repealed - Ord. 3431 - 7/99 5.70.060 Repealed - Ord. 3431 - 7/99 5.70.065 Repealed - Ord. 3431 - 7/99 5.70.070 Permit Renewal 5.70.080 Permits Nontransferable 5.70.090 Sex Oriented Businesses--Change Of Location Or Name 5.70.095 Sex Oriented Performer--Change Of Location Or Name 5.70.100 Sex Oriented Business Standards Of Operation 5.70.110 Inspections 5.70.115 Revocation of a Sex Oriented Business Permit 5.70.120 Revocation of a Sex Oriented Performer Permit 5.70.130 Regulations Nonexclusive 5.70.140 Violation--Penalty 5.70.150 Unlawful Operation Declared Nuisance 5.70.160 Minors And Intoxicated Persons 5.70.170 Employment Of Persons Without Permits Unlawful 5.70.180 Severability 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 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. (Urg. 3341-10/96) 1egisdrft/mc570/6/28/00/4:19 PM 6 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. (Urg. 3341- 10/96) 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. (Urg. 3341-10/96) 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 specifies anatomical areas. (Urg. 3341-10/96, 3431-7/99) (b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee. (Urg. 3341-10/96) (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). (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (e) Owner or Permit holder or Permittee. "Owner", "Permit holder" or "Permittee" means any of the following: (Urg. 3341-10/96, 3431-7/99) (i)(1) the sole proprietor of a Sex Oriented Business; or (Urg. 3341-10/96, 3431- 7/99) (ii)(2) any and all individuals owning a twenty percent (20%) or greater equitable interest, including any community property interest, in the Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) 1egisdrfr/mc570/6/28/00/4A9 PM 7 (i4)(3) 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. For purposes of this Chapter, "corporation" shall also include not-for-profit corporations and limited liability corporations. (Urg. 3341-10/96, 3431-7/99) (f) Performer. "Performer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas. (3431-7/99) (g) 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.(Urg. 3341-10/96, 3431-7/99) (h) 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. (Urg. 3341-10/96, 3431-7/99) (i) 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. (Urg. 3341- 10/96, 3431-7/99) (j) 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 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: (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/6/28/00/4:19 PM 8 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 (Urg. 3341-10/96, 3431- 7/99) (4)(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. (Urg. 3341-10/96, 3431-7/99) (iii)(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. (Urg. 3341-10/96, 3431-7/99) (k) Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel" means a hotel or motel, which (Urg. 3341-10/96, 3431-7/99) (i)(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 (Urg. 3341-10/96, 3431-7/99) "(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." (Urg. 3341-10/96, 3431-7/99) (1) 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. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/6/28/00/4:19 PM 9 (m) 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. (Urg. 3341-10/96, 3431-7/99) (n) 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. (Urg. 3341-10/96, 3431-7/99) (o) 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 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. (Urg. 3341-10/96, 3431-7/99) (p) 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. (Urg. 3341-10/96, 3431-7/99) (q) Specified sexual activities. "Specified sexual activities" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (2) Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; (Urg. 3341-10/96) (3) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or (Urg. 3341-10/96) legisdrfUmc570/6/28/00/4:19 PM 10 (4) Fondling, erotic or sexually touching of human genitals, pubic region, buttocks, cleft of the buttocks, female breast; or anal region. (Urg. 3341-10/96) (5) Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or (Urg. 3341-10/96) (6) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or (Urg. 3341-10/96) (7) Human excretion, urination, menstruation, vaginal or anal irrigation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (r) Specified anatomical areas. "Specified anatomical areas" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96) (2) Human male genitalia in a discernibly turgid state, even if completely and opaquely covered. (Urg. 3341-10/96) (3) Any device, costume, or covering that simulates any of the body parts included in subdivisions (1) and (2) above. (Urg. 3341- 10/96) 5.70.015 Statements and records. Person(s) required to obtain a Sex Oriented Business Permit shall maintain complete records which can be segregated with regard to all transactions involving such products, merchandise, services or entertainment which are sufficient to establish the percentage of gross receipts of the business which is derived from such transactions. (Urg. 3341-10/96, 3431-7/99) Such records shall be maintained for a period of at least three (3) years. (Urg. 3341-10/96) 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. (Urg. 3341-10/96) Iegisdrfdmc570/6/28/00/4:19 PM 11 5.70.020 Permit required. (a) No person, association, partnership or corporation shall 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 Permit and a business license from the City of Huntington Beach. (Urg. 3341-10/96, 3431-7/99) (b) To obtain a permit to own, operate, engage in, conduct or carry on any Sex Oriented Business, the Owner 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 paid to the City to defray, in part, the cost of investigation and report required by this chapter. The receipt, or a copy thereof, shall be supplied to the Chief of Police at the time such application is submitted. (Urg. 3341-10/96, 3431-7/99) (c) The application for Permit does not authorize the engaging in, operation of, conducting of, or carrying on of any Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (d) Only the Owner of the Sex Oriented Business is eligible to obtain a Sex Oriented Business Permit. (Urg. 3341-10/96, 3431-7/99) (e) The Owner shall post the Permit conspicuously in the Sex Oriented Business Premises. (Urg. 3341-10/96, 3431-7/99) (f) The fact that an Owner has other types of state or City permits or licenses does not exempt the Owner from the requirement of obtaining a Sex Oriented Business Permit. (3431-7/99) 5.70.030 Application for Sex Oriented Business Permit. Each application for a Sex Oriented Business permit shall contain the following information: (Urg. 3341-10/96) (a) Owner Information (Urg. 3341-10/96, 3431-7/99) (1) The full, true name and any other names, including aliases, used by the applicant. (Urg. 3341-10/96) (2) The present business address and telephone number of the applicant. (Urg. 3341-10/96, 3431-7/99) (3) Acceptable written proof that the applicant is at least eighteen(18) years of age. (Urg. 3341-10/96, 3431-7/99) (4) The social security number and state driver's license or identification card of the applicant. (3431-7/99) legisdrft/mc570/6/28/00/4:19 PM 12 (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. (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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, and each stockholder holding more than twenty percent (20%) of the stock in the corporation, including community property interests. 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. (201%) or-greater- equitable interest, ineluding interests in the S ex Oriented Business shall eemplete and sign all 1egisdrft/mc570/6/28/00/4:19 PM 13 but only one appheation fee shall be eh rge . (Urg. 3341-10196, 3431- 7/99) (b) Business Information (Urg. 3341-10/96) (1) The name and address of the owner and lessor of the real property upon which the business is to be conducted. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (3) The address to which notice of action on the application is to be mailed. (Urg. 3341-10/96) (4) The name(s) of the responsible person(s) 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). (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.035 Sex Oriented Business Permit Issuance. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) 5.70.040 Sex Oriented Performer Permit (Urg. 3341-10/96, 3431-7/99) (a) No person shall engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities without a valid Sex Oriented Performer Permit issued by the City. (Urg. 3341-10/96, 3431-7/99) Iegisdrft/mc570/6/28/00/4:19 PM 14 (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (f) The completed application shall contain the following information and be accompanied by the following documents: (Urg. 3341-10/96, 3431-7/99) (1) The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant; (Urg. 3341-10/96) (2) The applicant's height, weight, hair and eye color and date and place of birth; (Urg. 3341-10/96, 3431-7/99) (3) Present residence address and telephone number; (Urg. 3341- 10/96, 3431-7/99) (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, 2661, 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. (Urg. 3341-10/96, 3431-7/99) (5) The social security number and state driver's license or identification number of the applicant. (Urg. 3341-10/96, 3431- 7/99) (6) Acceptable written proof that the applicant is at least eighteen (18) years of age; (Urg. 3341-10/96, 3431-7/99) Iegisdrft/mc570/6/28/00/4:19 PM 15 (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; (Urg. 3341-10/96, 3431-7/99) (8) The business address and telephone number where the performance will take place. (3431-7/99) (9) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.045 Sex Oriented Performers Permit Issuance. (Urg. 3341-10/96, 3431-7/99) Within ten (10)business days of receipt of a completed application, as set forth in Section 5.70.040 and payment of the applicable fees, the Chief of Police shall issue a Sex Oriented Performers Permit. However, issuance of the permit does not preclude revocation of the permit pursuant to Section 5.70.120. (Urg. 3341-10/96, 3431-7/99) 5.70.050 Applicant to appear. The applicant for a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (Urg. 3341-10/96, 3431-7/99) 5.70.070 Permit renewal. Each Sex Oriented Business Permit and Sex Oriented Performers Permit shall expire one (1) year from the date of issuance. The applicant shall make application for renewal to the Chief of Police on a form provided by the Chief of Police accompanied by the renewal fee and a copy of the Permit to be renewed. 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. (Urg. 3341- 10/96, 3431-7/99) 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 shall be given, in writing, to the permittee within ten (10)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 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. (Urg. 3341-10/96, 3431-7/99) The applicant for renewal of a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (3431-7/99) legisdrft/mc570/6/28/00/4:19 PM 16 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 either any individual who previously owned less than twenty percent (20%) if the corporation or partnership acquires at least twenty percent (20%) 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. (Urg. 3341-10/96,. . 3431-7/99) 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. (Urg. 3341-10/96) (b) No Sex Oriented Business Performer permit may be sold, transferred or assigned to any other person or persons. (3431-7/99) 5.70.090 Sex Oriented Businesses -- Change of location or name. (Urg: 3341-10/96) (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 city, and approval has been obtained from the Chief of Police. Such approval shall not be given unless all requirements and regulations, as provided herein for applications for permits, have been met. (Urg. 3341-10/96, 3431-7/99) (b) No permit holder shall operate, conduct, manage, engage in, or carry on a Sex Oriented Business under any name other than his name and the name of the business as specified on the applicable permit. (Urg. 3341-10/96, 3431-7/99) (c) Any application for an extension or expansion of a building or other place of business where a Sex Oriented Business is located shall require inspection and shall comply with the provisions and regulations of this Chapter. (Urg. 3341-10/96) 5.70.095 Sex Oriented Performer--Change of location or name. No permit holder shall perform under any name other than the name specified on his or her permit in any other location other than the location specified on his or her permit. (3431-7/99) legisdrft/mc570/6/28/00/4:19 PM 17 5.70.100 Sex Oriented Business Standards of Operation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) All indoor areas of the Sex Oriented Business within which patrons are permitted, except restrooms, shall be open to view at all times. (Urg. 3341-10/96) (3) Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs 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 areas" or "specified sexual activities." (Urg. 3341-10/96, 3431-7/99) (b) General Provisions (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) No person under the age of 18 years shall be permitted within the premises at any time except as pursuant to California Penal Code Section 313.2. (Urg. 3341-10/96, 3431-7/99) (3) The Sex Oriented Business shall not operate or be open between the hours of 11 p.m. 2:00 a.m. and 11:00 a.m. (Urg. 3341-10/96) (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 legisdrft/mc570/6/28/00/4:19 PM 18 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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) (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. (Urg. 3341-10/96) Iegisdrft/mc570/6/28/00/4:19 PM 19 (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (d) The following additional regulations shall pertain to Sex Oriented Motion Picture Arcades which provide more than one viewing area: (Urg. 3341-10/96) (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_ 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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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 1egisdrft/mc570/6/28/00/4:19 PM 20 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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: (Urg. 3341-10/96) 1egisdrft/mc570/6/28/00/4:19 PM 21 (i) performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (Urg. 3341-10/96, 3431-7/99) (ii) a distance of at least six (6) feet is maintained between any performer and any patron. (Urg. 3341- 10/96, 3431-7/99) (2) The Sex Oriented Business shall provide separate dressing room facilities for performers which are exclusively dedicated to the entertainers' use. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96; 3431-7/99) (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. (3431-7/99) 5.70.110 Inspections. (Urg. 3341-10/96, 3431-7/99) The permit holder shall allow the City of Huntington Beach and its 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. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/6/28/00/4:19 PM 22 5.70.115 Revocation of a Sex Oriented Business Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Business Permit when: (U rg. 3341- 10/96, 3431-7/99) (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 (Urg. 3341- 10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (4) The Sex Oriented Business has been operated in violation of any of the requirements of this Chapter and, (Urg. 3341-10/96, 3431-7/99) (1) 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 (Urg. 3341-10/96) (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 1egisdrft/mc570/6/28/00/4:19 PM 23 the provisions of this Chapter occur(regardless of whether notice of each individual violation is given to Owner) within any twelve (12) month period; or (Urg. 3341-10/96, 3431-7/99) (5) The applicant has made material misrepresentations or fraudulent, false, or misleading statements in the application; or (3431-7/99) (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 (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 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. (3431-7/99) 5.70.120 Revocation of a Sex Oriented Performer Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Performer Permit when: (3431-7/99) (1) The applicant has made material misrepresentations or false or misleading statements in the application; or (3431-7/99) (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 children, sexual abuse, rape, distribution of obscene material or material harmful to minors, prostitution or pandering, including, but not necessarily 1egisdrft/mc570/6/28/00/4:19 PM 24 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 (3431- 7/99) (3) The Sex Oriented Performer has violated the requirements of this Chapter; or (3431-7/99) (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 five (5) years prior to the date of application. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) 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. (Urg. 3341-10/96) 5.70.140 Violation--Penalty. Any violation of this chapter shall be guilty of^ MISDEMEANOR-,punishable by: ent in the eeuntyjail for-a period not to exeeed six (6) menths, or-by both stieh fine and impr-isenment. (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; (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. Iegisdrft/mc570/6/28/00/4:19 PM 25 (c) It shall be a violation of this Chapter for any principal, including but not limited to any owner, manager, or person with managerial or supervisory control, 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. 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 Gity n tt Ft addition toor-in fiet f shall take sueh other- steps and shall apply to stieh eeuFt or-eouFts as May h&�,e jur-isdietion to gfa-nt sueh felief as will abate or-r-emove stieh Sex Oriented Business and restrain and enjoin an) prvdi�. of this ehapte (Urg. 3341_10 96) 5.70.160 Minors and Intoxicated Persons. (Urg. 3341-10/96) (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 except as pursuant to California Penal Code Section 313.2. A sign giving notice of this provision shall be prominently posted at each entrance to the premises of the Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) (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. (Urg. 3341-10/96) 5.70.170 Employment of Persons Without Permits Unlawful. (a) 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 1egisdrft/mc570/6/28/00/4:19 PM 26 to perform such entertainment who is not in possession of a valid, unrevoked Sex Oriented Performer Permit. (Urg. 3341-10/96, 3431-7/99) (b) The owner, operator,manager or permittee in charge of or in control of the Sex Oriented Business which provides live entertainment shall provide proof of a valid Sex Oriented Performer Permit for each individual engaged in live performance upon demand of a police officer. Failure to provide proof is a violation of this chapter. (3431-7/99) 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. (Urg. 3341-10/96) 1egisdrrft/mc570/6/28/00/4:19 PM 27 RCA ROUTING SHEET INITIATING CITY ATTORNEY DEPARTMENT: SUBJECT: Establishing Public Nudity Prohibition and Modification of Penalties and Findings for Violation of Sex Oriented Business Regulations COUNCIL MEETING DATE: July 5, 2000 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial . Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED -RETURNED FORWARDED Administrative Staff klaa vv Assistant City Administrator Initial City Administrator Initial City Clerk EX PLANATION FOR RETURN,OFnITEM ,, Only)(Below Space For City Clerk's Use I• CITY OF HtJNTII GTOloll BEACH INTER-DEPARTMENT COMMUNICATION HUNTINGTON BEACH Connie Brockway, City Clerk Office of the City Clerk Liz Ehring, Deputy City Clerk II To: Oei� Date: —� Meeting Date: 7/S/(7 8 Agenda Item: Proposed City Council Agenda Items: The City Clerk's Office/City Administrator's Office must return your agenda item due to the following requirements that have not been met. When your Agenda Item is ready to resubmit, please return to: Elaine Kuhnke, Management Assistant, Administration I. Signature(s)Needed A On RCA B On Agreement C Other 2. Attachments A Missing B Not identified C Other 3. Exhibits A Missing B Not identified C Other rA 4. Insurance Certificate(Proof Of Insurance) A Not attached B Not approved by City Attorney's Office C Signed form notifying City Clerk that department will'ye responsible for obtaining insurance certificate on this item.(See form attached) 5. Wording On Request For Council Action CA)Unclear A Recommended Action on RCA not comp to B Clarification needed on RCA C Other 6. City Attorney Approval Re fired 7. Agreement Needs To a Changed A Page No. 8. Other 7 0 U G:agenda/m isdreaform REQUEST FOR ACTION ME15TG DATE: July 5, 2000 DEPARTMENT ID NUMBER: CA 07-00 and future ex Oriented Businesses. Consistent with Kandyland, the public nudity ordinance re 'tes the negative secondary effects associated with nude dancing. Because the possibility that State Penal Code preempts any City criminal regulations, it is reco mended that violations of the public nudity ordinance be civilly enforced. The Kandyl d decision specifically deals with the Federal First Amendment issues. However, in Cali rnia, there is still some question regarding preemption of criminal enforcement related to the egulating of sex oriented businesses. For example, the City of Anaheim was involved in two eparate cases where the dancers successfully contended that the City could not criminally en rce nudity regulations that overlap State Penal laws related to sexual conduct. Alternatively, the success of e City of Newport Beach in its civil enforcement efforts suggests that non-criminal enfo ement mechanisms, such as administrative citations and civil injunctions, avoid the preemptio issue and comport with the recent Supreme Court decision. Based on similar concerns related to eemption, the City Attorney also recommends amendment of Huntington Beach unicipal Code Chapter 5.70 regulating Sex Oriented Businesses. The amendment modifies t e penalty section of the ordinance making all violations of the chapter civilly enforceable. Furt r, it is recommended that the City Council carefully review the factual findings and adop them in support of Chapter 5.70 and the proposed amendments to it and Chapter 9.37. The e findings will not be codified in the Municipal Code, but will remain on file in the City Clerk's ffice for public inspection. Environmental Status: Not applicable. Attachment(s): City Clerk's Page Number No. Description 1 Ordinance No. 3�169 repealing Huntington B\Mu cipal Code Section 9.36 and Adding Section 9.37 2 Legislative Draft of H.B.M.C. 9.36 3 Ordinance No. W� 0 amending Huntington Bepal Code Section 5.70 4 1 Legislative Draft of HBMC 5.70 SOBRCA -4- 6/23/00 2:03 PM ORDINANCE NO. 3��4 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AM ING CHAPTER 5.70 OF THE HUNTINGTON BEACH MUNICIPAL CODE ATING TO PENALTY FOR VIOLATION OF REGULATIONS AND FINDINGS IN SUPPORT OF CHAPTER 5.70 The City Counci does hereby ordain as follows: SECTION 1. Findi s. The following findings are hereby adopted in support of Chapter 5.70 and the amendm is thereto. The findings shall not be codified. The City Council takes legs ative notice of the following studies which the City Council has a reasonable basis to bell ve are relevant to the experience of Huntington Beach, and which show that Sex Orien d Businesses cause secondary effects which degrade the areas of the city in which the are located [such as depreciation of property values and increase in vacancies in resident' 1 and commercial areas], cause a blighting effect on the city[such as low level maintena ce 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 wh such property is located in the vicinity of the Sex Oriented Business and increase crime in eneral, and sex and drug-related crimes in particular, in the vicinity of the sex-oriente businesses: New York, New York, Department of City Planning (1994); Garden Grove, C ifornia(1991); Tucson, Arizona (1990); Seattle, Washington, Department of Constructio and Land Use (1989); Austin, Texas, Office of Land Development Services (1986); Okla oma City, Oklahoma(1986); Indianapolis, Indiana, Department of Metropolitan Develop ent(1984); Houston, Texas, City Council Report (1983); Beaumont, Texas (1982); Minnes to Crime Prevention Center, Inc., Minneapolis (1980); Phoenix, Arizona(1979); Los geles, California, Department of City Planning (1977); Amarillo, Texas, Planning D artment (1977); and Cleveland, Ohio (1977); Newport News Virginia, (1996), the Times quare Study(1994). The City reasonably believes that these studies are relevant to the pro ems addressed by the City in enacting this Ordinance to reduce or eliminate the adverse se ondary effects of sex-oriented businesses. In the City of Huntington Beach, the following secondary effects have een observed by the Police Department to have been generated by public nudity: R ting has occurred after females exposed their breasts before a crowd in the Pier area of H tington Beach. Their actions excited the crowd and triggered mob acts of violence and van alism. Nudity in the public park has resulted in numerous arrests for violations of the Cali'o is Penal Code related to public fornication and lewd acts. These crimes have occurred a r public exposure of gentialia and in areas open to the general public. Citizen complaints have been received by the Police Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity. OOord/mc570-o/6/22/00/3:42 PM 1 r i ! LAW OFFICES WESTON, GARROU & DEWITT JOHN H. WESTON* A PARTNERSHIP OF PROFESSIONAL CORPORATIONS SAN DIEGO OFFICE CLYDE DEWITT'f G. RANDALL GARROU'i WILSHIRE BUNDY PLAZA 432 F STREET SUITE 202 COLIN C. HOLLEY 12121 WILSHIRE BOULEVARD, SUITE 900 SAN DIEGO. CA 92101-6138 JULIE A. BEHRENS LOS ANGELES, CALIFORNIA 90025-1176 FAX (619) 239-1717 � OF COUNSEL (619) 232-5455 (310) 442-0072 AUBREY I FINN CATHY E. CROSSON FAX (310) 442-0899 A. DALE MANICOM 'A PROFESSIONAL CORPORATION tALSO ADMITTED IN TEXAS =ALSO ADMITTED IN UTAH July 5, 2000 Hon. Mayor Garafalo and Members of the RECEIVED FROM `� � °�°" AND MADE A PART OF THERE R_ THE Huntington Beach City Council COUNCIL MEETING OF °' c/o City Clerk OFFICE OF THE CIT'I? ERK CONNIE BROCKWAY,CITY LCLERK City Hall 2000 Main Street Huntington Beach, CA 92648 Re: Opposition to Proposed Adoption of Ordinance No. 3469 Regarding Public Nudity, on behalf of Talbert & Beach, Inc., Owners of Flamingo Theater at 18121 Beach Boulevard Dear Mayor and Council Members: On behalf of my client, Talbert & Beach, Inc., I write in opposition to the Council's proposed adoption of a new anti-nudity ordinance aimed at preventing the possibility of nude dancing in my client's business, the first (and so far only) adult live entertainment establishment to have received a license to operate in Huntington Beach. As you are probably well aware, even though my client has had a sex-oriented business permit, it has not yet opened as it is still awaiting issuance of its Certificate of Occupancy. Nonetheless, and as you no doubt are already aware, it appears clear that issuance of the C of O is imminent and my client will be open very shortly. After having spent hundreds of thousands of dollars to open at this location, my client is met, on the eve of its opening, with a proposed new ordinance to prevent it from doing the very thing which the City knew, all along, it wanted to do at this location, i.e., present erotic dancing performances to consenting adult audiences which would consist, at least in part, of on-stage nude dancing. As the law firm which litigated the case of City of Erie v. Pap's A.M. ("Kandyland") in the United States Supreme Court, we are well aware of the criteria that apply in determining the validity of a proposed anti-nudity ordinance. Enacting such a law is �r� LAW OFFICES WESTON. GARROU 8 DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Huntington Beach City Council July 5, 2000 Page 2 anything but a simple undertaking. However, in the Pap's decision, Justice O'Connor (speaking for four members of the Court), implied that the outcome of that case might have been different if Kandyland had made a record before the City Council contesting the Council's finding of secondary effects. Specifically, Justice O'Connor stated: "Here, Kandyland has had ample opportunity to contest the Council's findings about secondary effects — before the Council itself, throughout the State proceedings, and before this Court. Yet to this day, Kandyland has never challenged the City Council's findings or cast any specific doubt on the validity of those findings." 120 S.Ct. at 1396. By this letter, and the accompanying presentation, my client, Talbert & Beach, Inc., intends to specifically take advantage of the opportunity suggested by Justice O'Connor and make the sort of challenge which we submit demonstrates the invalidity of the proposed ordinance. . Specifically, there is a dispositive difference between the circumstances here and those in the,Erie case. . Specifically, the Erie ordinance was based upon the assumed secondary effects which-assertedly.occur.in a nude dancing establishment where there are no municipal restrictions imposing mandatory separations between customers and dancers. In such circumstances, it was not inconceivable that at least four members of the Court assumed that there would be the type of secondary effects which might suffice to meet constitutional tests for restrictions on free expression. That is not the case here. Pursuant to the existing provisions of Chapter 5.70 of the Huntington Beach Municipal Code, the city imposes a number of very severe restrictions to ensure that there will be no secondary effects of the type which supported the Pap's legislation. Specifically, your existing code provisions already prohibit nude dancers from making contact with customers, and even from performing within six feet of them. Moreover, such perfor- mances must take place on a raised stage separate from the customer seating area and there must also be a fixed rail acting as an additional barrier between the dancer and the customer. There is no data before you this evening which establishes the existence of any of the types of secondary effects which motivated the Erie ordinance under circumstances where the dancers were complying with the types of restrictions you have here, i.e., mandatory six-foot separation requirements and a requirement that all nude dancing be performed exclusively on a raised stage well separated (by both barriers and a six-foot distance) from the audience. t t II LAW OFFICES WESTON. GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Huntington Beach City Council July 5, 2000 Page 3 Even beyond this, we are attaching hereto a collection of newspaper clippings (mostly from the Los Angeles Times) that we have compiled over the last few weeks for the purpose of trying to obtain a reasonable "real-world" assessment of secondary effects attached to various businesses in our communities. Throughout the time that we have been doing this monitoring, we have noticed no newspaper articles describing any ill effects in connection with any adult entertain- ment businesses. In contrast, the Los Angeles Times documents a plethora of adverse secondary effects which occur in connection with a wide variety of other less heavily regulated businesses and uses in contemporary society. I have attached a chart which outlines these for you, and also the newspaper clippings which support the conclusions summarized in the chart. In short, it is very common for non-adult nightclubs and bars to be the sight of gang-land murders. It is also common for sports stadiums and concert sites to be the source of many severe adverse secondary effects, including, most recently, the riots in the streets around the Staples Center following the Lakers victory. Likewise, concert venues frequently produce mass disturbances. As recently as today's Los Angeles Times, yet another set of murders has occurred in a type of area routinely visited by the public, i.e., the Santa Monica Pier. In short, the concept of"secondary effects" is a highly manipulable one and could be used to justify almost any restriction on anything. However, the notion that adult entertainment businesses cause substantially worse secondary effects upon society than numerous other businesses which are not subject to severe restrictions,is ludicrous. This is particularly the case with businesses such as that operated by my client, where all the conduct takes place exclusively inside of the business,where no minors are allowed,and where no alcohol is served. However, no matter whether you believe my comments regarding secondary effects generally or not, the bottom line is that in this case, the notion that secondary effects can justify an anti-nudity ban, is entirely incredible, given the severe restrictions that are already in place to prevent precisely the sorts of second- ary effects that the "anti-nudity" ban is presumably being proposed to deal with. Again, there is absolutely no evidence before you in connection with the ordinance pending before you, to suggest that there are any secondary effects to be combated by an anti- nudity ordinance in a city where all nude dancing must occur at least six feet away from the nearest customer and upon a separated and raised stage with fixed rail barriers. Under these circumstances, the only conceivable legislative purpose that could be offered in support of such an ordinance would be raw and unbridled censorship. LAW OFFICES WESTON, GARROU F3 DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Huntington Beach City Council July 5, 2000 Page 4 Because I believe you share with me the belief that government should stay out of adult citizens' lives, at least absent the existence of any demonstrated secondary effects which could justify further restrictions, I urge you not to enact the proposed anti-nudity ordinance. Sincerely, WESTON, GARROU & DEWITT By- G. RANDALL GARROU GRG:jm LRG4724 Encls. EXAMPLES OF ASSOCIATED NATURE OF USE SECONDARY EFFECTS SOURCES Churches Church Youth Activities L.A. Times Metro Section Supervisor charged with Page B 1 having sex with two girls June 29, 2000 under the age of 18, as well as committing sexual battery against a third girl on the premises EXHIBIT A Nightclubs 67-year old man killed, 6 L.A. Times Metro Section injured in drive-by shooting Page B 1 outside an L.A. nightclub June 26, 2000 EXHIBIT B 29-year old Anaheim woman L.A. Times Metro Section killed and three others Page B 1 wounded in a vehicle-to- June 28, 2000 vehicle attack after leaving a popular Latin nightclub EXHIBIT C Piers Murder suspect shot and L.A. Times Front Page wounded three police officers July 5, 2000 and two bystanders and held 15 hostages inside an aracde during a five-hour siege at Santa Monica Pier EXHIBIT D Public Parks Rapes of 63 women in New L.A. Times Metro Section, York Central Park Page B8 June 26, 2000 EXHIBIT E 9 men wounded, with 1 L.A. Times Metro Section eventually dying in drive-by Page B4 shooting at Athens Park in June 27, 2000 Los Angeles EXHIBIT F Schools School employee investigated L.A. Times Metro Section on charges that he molested Page B 1 several high school students June 29, 2000 and embezzled an undetermined amount of money from the school district EXHIBIT G Resident physician (who was L.A. Times recently fired) killed the Page A20 Medical Chief and then killed June 29, 2000 himself on the campus of the University of Washington EXHIBIT H Sports Stadiums Post-game rampages and L.A. Times Front Page riots in the streets and June 21, 2000; vicinity surrounding Staples L.A. Times Metro Section Center in Los Angeles Page B 1 June 21, 2000 EXHIBIT I Concert Sites More than 60 people arrested The Boston Herald and many treated for injuries Local & regional Section as concert fans at the WBCN May 29, 2000 River Rave became hostile. EXHIBIT J Youth Facilities Youth Counselor was L.A Times Page A3 abducted and killed at the June 21, 2000 California Youth Authority Center EXHIBIT K K:\WP60\RG\ORGO003.WPD LOCAL NEWS/WEATHER/EDITORIALS SECTION aMETRO''owe 29,2000 cc U4 Anew ftm Church Youth Leaser rau Charges of Sex With Minors POMONA—A church youth activities su- pervisor has been charged with having sex with two girls under the age of 18,as well as committing sexual battery against third girl on the premises,prosecutor said. Anthony Howard Daenzer, 28, of Glen- dora faces arraignment today on various felony charges including three counts of unlawful sexual intercourse, sexual pen- etration by a foreign object and oral copulation of a minor. Deputy Dist.Atty. Christine Weiss said Daenzer is also charged with misdemeanor sexual battery involving a third girl during April at the Pilgrim Congregational Church,where he worked.He was arrested at his Glendora home Monday night. Daenzer is allegedly to have had sex with one girl at her Glendora home and with another girl at her home in unincorpo- rated Claremont, according to Weiss. Those incidents occurred between Dec.22, 1999,and May 30. t LOCAL NEWS/WEATHER/EDITORIALS SECTION [B-1 METRO KQ=AV floe Ana¢te$amei JUNE 26,2000 cc - - -- ---- Man, 67, Killed, 6 Injured in Drive-By Shooting Outside Nightclub From a Times Staff Writer congregated outside on the 4400 It was uncertain whether Boyak- Hospital.Two other men, ages 19 block of Broadway Avenue when in was shot by people who were and 22,were treated and released Suspected gang members the shooting erupted at 1:40 a.m. standing with him in the parking at Martin Luther King/Drew Medi- armed with a semiautomatic rifle At least one of those in the parking lot or the people firing from the car, cal Center. A 25-year-old man was opened fire from a passing car on lot crowd was also armed and re- police said. treated for a gunshot wound at r a group of people gathered in a turned the fire,according to inves- The motive for the shooting ap- Long Beach Memorial Medical parking lot outside a Los Angeles tigators from the LAPD's Newton peared to be gang-related. It may Center. nightclub early Sunday, leaving Station. have been in retaliation for a prior No arrests were made. one dead and six injured, police John Henry Boyakin, 67, suf- incident,police said. Police urged anyone with infor- said, fered numerous gunshot wounds Two males,ages 17 and 19,and a mation about the shootings to con- Los Angeles police said numer- and was pronounced dead at the 27-year-old woman were treated for tact the Newton Homicide Unit at ous patrons of the nightclub had scene. gunshot wounds at County-USC 323-846-6556. LOCAL NEWS/WEATHER/EDITORIALS SECTION LB weoMesoItr JUNE 28,2000 cc METRO Cos Angeles Mimes 1 Man Held in Fatal Shooting After Dispute at Nightclub PICO RIVERA—Detectives have arrested a suspect in the shooting death of a 29-year-old Anaheim woman and the wounding of three others in a vehicle-to- vehicle attack, a Sheriff's Department spokeswoman said Tuesday. John Olivarez, 19, of Commerce was booked early Monday on suspicion of murder in the death of Laura Tellez. She was fatally shot on Paramount Boulevard early Saturday after leaving a popular Latin nightclub, sheriff's.Deputy Belinda Johnson said. Olivarez was held without bail pending arraignment,Johnson said. Police said Tellez's friends had gotten into a dispute with a group of about eight to 10 young men at El Rodeo, 8825 E. Washington Blvd. A security guard or- dered the group of men to leave;Tellez and three others drove off later, at about 2:15 a.m.,said investigators. As Tellez and the three others headed south on Paramount Boulevard, a car pulled alongside and a man with a gun opened fire,wounding everyone in the car, police said. The driver managed to get to a gas station in Downey, where someone called for help. Tellez died at the scene. One person remains hospitalized, and two oth- ers suffered lesser wounds. Detectives are seeking information on two additional suspects. Anyone with in- formation can call(323)890-5500. C o u 4 e es Q71,mero ON THE INTERNET.-WWW.LATIME&COM WEDNESDAY,JULY 5,2000 DAILY 2SC CIRCULATION:1.1 H,785 DAILY'138/ SUNDAY COPYRIGM 2000/CC/85 PAGES DESIGNATED AREAS HIGHER Five Shot on Bustling Santa Monica Pier m Violence:Murder suspect surrenders after 7, holding up to 15 hostages during five-hour siege. 9 M) By ELISE GEE A andpSICGA I To THE SPEC HE TIMES The festive early morning Fourth of July atmosphere on the Santa Monica Pier was shattered Tuesday when a murder suspect shot and wounded three police offi- cers and two bystanders and held 15 hostages inside an arcade during pp a five-hour siege,police reported. The shooting sent dozens of peo- ple diving for cover and transformed the popular pier from a fun zone into a chaotic crime scene.The dramatic events forced closure of the Santa GENARO MOLINA i Los ArWies'llmes Monica landmark until the evening of the July Fourth holiday. Police officers keep rifles trained on Santa Monica Pier's Playland Please see PIER,Al2 arcade, where a murder suspect was holding 15 hostages. *D I � fa t79 , k 3 3i E �gjai 14117 MIMMMq '#`7��r�t��i3iMa Irrr� + � • TOO IV-IV AS NMI a" f� •a � SN=_ SM r'v 1 n�x t�" �?• a' -4' °"f° 'fx 4Y. . w r t j .. 1 Sc � dz .,f; z✓ xa � " r + .........., �+48 �I�*. i � Sr win: s °�"+• { ...F 4� 'z�i�' " � �1 .� �-z z' sip � 3 d, PIER: People 'Screaming and Running' continued from Al The crisis ended at 6:40 am.with > r the negotiated surrender of Oswal- W.<- do Amezcua,25,of Baldwin Park, who was being sought by police as an accomplice in three gang- related slayings—in Victorville, Ontario and Baldwin Park. k :` ' "�'• He had come to the pier with Jo- seph Flores, 30, also of Baldwinv` Park, a suspect in the slayings.Both men also were wanted for an assault last month in Fontana on a San Bernardino County sheriff's deputy.Flores was overpowered by police as the drama began. Hours after the hostages were �' t freed and Amezcua surrendered, waves of people—fishermen,fami- lies with children in strollers,tour- ists and refugees from the heat of l` 1 inland valleys—flooded toward the PAULMORSE i LosAnples`rimes pier entrance only to be turned Investigators kept Santa Monica Pier closed until Tuesday evening. away by uniformed officers. The brightly colored Ferris Santa Monica police located Flo- Bonnie and her 17-year-old boy- wheel was still and the pier emptied res in an unusual fashion. friend, Michael Lopez, both from of fun seekers, street vendors and San Bernardino County sheriff's Palmdale,were the last two hos- performance artists. Instead,yel- detectives contacted Santa Monica tages to be freed.Afterward, Bon- low police tape fluttered in the officers at 1:04 a.m. to tell them nie said she was still frightened but mod' that Flores was on the pier. glad that the ordeal was over. Jeff Klocke,marketing director The San Bernardino deputies Throughout the early morning, for the pier amusement park,said knew Flores'whereabouts because negotiators tried to persuade the closure was"a huge disappoint- they obtained his pager number. Amezcua to release hostages.By 5 ment for us.July Four is one of our When Flores called them back, a.m., nine of the 15 had been re- most popular days." authorities traced the call to the leased,including all the children. The pier became a scene of gun- fire and terror in the early morning Pier. A female officer was the primary hours when Santa Monica police, After Flores was arrested and negotiator. She talked to Amezcua alerted by San Bernardino County Amezcua fled,the sound of music about the hostages' families and sheriffs deputies,moved in on Flo- and games in the arcade was doing the right thing,Gallinot said. res.Amezcua was nearby. drowned out by screams and gun- "He was remorseful for what he Flores was wrestled to the shots. Please see PIER,Al3 ground by several officers. He Susana Valdez and Jenny Gai- reached for a semiautomatic hand- tan,both 18 and from the San Fer- gun in his waistband before he was nando Valley,said they were just a subdued, said Santa Monica Police few feet from the gunman when he Lt. Gary Gallinot. Police later re- started shooting.They hit the floor covered a second handgun from of the arcade, lying flat until the Flores. gunfire stopped,obeying the urg- But Amezcua ran down the pier ing of police,who yelled at the by- and officers pursued him. Santa standers to get down. Monica police said Amezcua Then they escaped.But at least opened fire,wounding the three of- 15 others inside were not so lucky. ficers and the two bystanders. Police Lt.Gallinot said Amezcua None of the victims sustained life- held them hostage in the arcade. threatening injuries, authorities Four to six children were among said. those held. "People were screaming and About 100 people who had been running from gunshots," said eye- enjoying a night at the pier were witness Marie Scott. "They were stuck at the ocean end of the struc- just rolling under cars,just trying ture because police thought it to get under cars for cover." would be unsafe to move them past Santa Monica police said a fe- the arcade. Police brought in a male police officer,Chris Coria,was SWAT team and crisis negotiators. shot in the arm and may have suf- At times,Amezcua allowed the feeed nerve damage.Officer Steven hostages to use a cell phone to call Wong and Sgt.Jim Hirt were shot their families and let them know in the leg.All were hospitalized. they were all right. Also shot in the leg were a 17- Carol Stone got a call from her year-old male and a 35-year-old 18-year-old daughter Bonnie about woman,who were treated and re- 4 a.m."She told me don't be scared. leased from a local hospital. It's OK.He's cool.He's being good ��•`` Authorities did not disclose their to us. Of course, she didn't know \[—] �` nnmac what ha hnd Anna" \, --v—) WEDNESDAY, JULY.5, 2000 A13 PIER: `We're Were Out,' Hostageust Happy ' cla r esJ De Continued from Al2 g„�t; meet at noon on July 4,2000,at the had done. The negotiators are ,,, z end of the pier. trained to play on this." They arrived from points as far By 6:15 a.m.four more hostages had been released. After Amezcua "' '''_ ';;:;;• away as Texas,Mexico and Oregon, - � -y?;-a ?M P only to find the entrance blocked. surrendered peacefully,the shirt- "We came early.We didn't know+ less gunman was handcuffed and ,es:•a Y;F, r we'd get a police escort;'joked Tim led away to a patrol car.He will be charged with attempted murder „ ;.; ;. Robertson of Cupertino, Calif.He and his wife,Kathy,and son,Peter, and kidnapping and is being held on $1-million bail. Flores was held r 15, wandered about the pier en-+ on a variety of charges,including ;~ trance trying to recognize faces ' ast.h the being a felon with a gun. �v w ��;>`�€ from p This was a situation that could Eventually, the entire group have been catastrophic," Gallinot „v,N. converged,laughing and hugging ,;;� said. Instead, he called it a "text- z,,, .' -`•.`� .;,� despite the police presence. "We'll' book ending"to a hostage crisis. '.M ,- try again in 2020,"said Dean Olsen, Amezcua and Flores were ;; 4 who had come from Klamath Falls; Alow wanted in connection with slayings € 'd Ore.,for the weekend. •c �' ' in Victorville, Baldwin Park and In the afternoon, a man dressed Ontario, authorities said. ".These as a clown with a red rubber nose T were two hard-core,dangerous and glued to his made-up face headed p^SFr desperate individuals who were in- toward the pier with a bag of bal- volved in three other crimes and a loons.for children,only to be told shootout with deputies in San Ber- the pier was closed and he would nardino,"Gallinot said. have to take his act elsewhere.. Until the last of the hostages were freed, the others at the far Marcos,as he called himself, is end of the pier remained trapped, an actor from Uruguay who turns unable to leave."We're just,happy to clowning when money gets tight. PAUL MORSN•i Los Angeles'iimes He said the closure could cost him we're out," said Jenny Gonzalez, at least a couple of hundred dollars. 18,of Wilmington,when they were Kimberly Davidson, center, hugs Christy Little and Kevin Cowan after they were allowed to leave pier.: finally allowed to go. For merchants on the pier, Gonzalez said she had been kept tic,came to the pier to pick up their the pier,desperate for any informa- arcade,said there has been"little where the Fourth of July is one of in a small game room all night.The children who work there. tion about loved ones.Laura Dowd to no problem" on the pier since a the busiest and most profitable mood in the room was mostly quiet Kimberly Davidson, of South of South Los Angeles wanted to police substation opened."This is days of the year,the estimated loss with no rowdiness or panic, she Los Angeles, said she forced her know about the safety of her 15- just one of those unusual, tragic was greater. said. Periodically,police would tell way past the police in search of her year-old, Mary Carey. "I didn't things,"he said."But it is terrible, "This will hurt the pier a lot, them what was happening. son,Bobby Patterson."I told them know what was going on with my our employees were traumatized." said Jack DeNichola, manager of "We kinda felt like hostages be- there was no way in hell I was go- daughter. They weren't letting The closure scuttled reunion the Lobster Restaurant at the cause we couldn't leave either," ing to go back down the stairs as anyone in and they weren't letting plans for a group of friends who pier's entrance. "I think the police . Gonzalez said. long as my son was out there,"she anyone out." graduated in the 1970s from Foun- could have wrapped.it up much During the long night, con- said. Afterward, a relieved Bill Shen- tain Valley High School in Orange faster. I feel bad for people who cerned parents,some of them fran- Others waited in a parking lot off ault,whose wife owns the Playland County and agreed they would have businesses here." Coo Angeles OiTacs ON TIIE INTERNET:www.LAnM¢COM MONDAY,JUNE 26,2000 DAELY 25t: QRCULA710N:1.111.7A5 DAILY/I�&,6885UNDAY CIl Rrs:NMGO'irIMPAGM DESIGNATED AREAS HIGHER Continued from Al renting permits for the use of park from the tumult of Manhattan?Or facilities and making larger policy should it be a vibrant and sponta- decisions,such as the scheduling of neous place for concerts,rallies and concerts—the conservancy has had other events that energized the the greatest single effect on the park in the 1960s and 1970s,yet left space. Coexistence No Walk in the it badly scarred? Similar private park groups have More than 20 million people this been launched in Atlanta,Miami and year will visit the park,and it's easy San Francisco,and other cities have for in-line skaters, tourists, musi- contacted the conservancy about its Park Despite OpernLiSpaces cians, students,stockbrokers,nan- operations. But the organization's nies and homeless people to get on success can be misleading,experts each other's nerves, even though say because most communities are ■ Recreation:New York's Central Park is a prime rase of New York's public backyard seems unable to tap the same amount of wonderfully spacious. corporate and private wealth as that nations greenbelts trying to be all things to all people. Despite this month's sexual at- surrounding Central Park. tacks, overall crime is down 66% Moreover, "other arks in New ByJOSHGETLIN "There are only two rules for since 1993, and if anything Central P TIMES STAFF WRITER this beautiful area,"says Parks and Park seems to be a victim of its own York City are not receiving the kind Recreation Commissioner Henry success:The increase in social fric- of private investment that Central Stern, as Little Leaguers sprint Park gets," says Elizabeth Cooke, NEW YORK—On the first g P lion is a result of more people using executive director of the citywide morning of summer,Central Park onto a newly manicured field. the park, a testimonial to New advocacy group Parks CouncilIn is reborn once again .".Flanked by a "Rule No. 1 is: No concerts.Rule York's booming recovery.And the the last 10 years,there's been a."I Dixieland band playing"The Side- No.2 is:No concerts." question for many is no longer walks of New York,"city officials The crowd laughs, yet Stem's whether it's safe to go into the area, reduction in staffing and spending are celebrating the reopening of comments underscore the dilemma but whether people can do what on recreation programs,but you'd the North Meadow—a shimmering, that has plagued America's most they want once they get there. never know it if you looked only at parochial con- Central Park." not are 28-acre expanse of lush lawns, famous urban park since it opened "These P baseball diamonds and soccer in 1858 and was highlighted this cems,because Central Park has be- From the start,conservancy lead- fields. month when packs of young men come a Rorschach test,a reflection ers have. tried to forge a consensus sexual] attacked women as a a of the state of urban America for over proper use, aiming to create Less than eight years ago,it was y P - millions of people, and whatever "the most democratic possible ex- graffiti and neglect.But after a$71- What—and whom—is Central happens here good or bad tends to p rie weekend,"according to con- million campaign to restore the Park for?Should it be a museum- be magnified,'says Gordon Davis,a ! g former city parks commissioner. "If servancy Chairman Ian Smith meadow and other parts of the like space reserved for quiet recrea- someone is attacked on West 84th Still, the 843-acre rectangle is park, it sparkles with promise and tional use, a heavily policed haven Street,it's a newspaper brief.If the often filled with conflict:Guitarists new civic pride. Please see PARKS,Alt. same crime takes place in the park, *who want to honor John Lennon at we're suddenly talking about the the Strawberry Fields memorial irri- quality of urban life." tate people who wish to enjoy the But the park is more than a ba- site quietly.Joggers shouting into rometer of crime or good times in cell phones jar the calm of seniors American cities.On a languid after- out for a stroll,dog owners rattle.the noon, the area's newly restored peace of sunbathers and bird-watch- lawns, lakes and trails are more ers jostle for space on street corners beautiful than ever,and much of the with tour groups admiring park credit goes to the Central Park Con- trees. servancy, a nonprofit group formed In recent years, some visitors 20 years ago that has raised more have been fined for"quality of life" than$270 million from the private violations that were unthinkable 10 sector. The organization,which has years ago. Last year, a father was become an enviable model for other given a$1,000 summons by officers cities,is charged with restoring and when his children climbed a rare maintaining the park: Japanese tree.Groups of more than In a novel arrangement,the con- 20 people have been told by City servancy runs the park day to day, Hall that they must get a$25 permit contributing more than 85% of its for such gatherings,such as a family annual budget and paying more than picnic. 260 employees.Although New York While Stern and other officials retains overall control of the area— have generally frowned on the mas- 8� ••C- .x. � n� .� C _t fluent people could get to the distant As he speaks,two acoustic guitar- : site. ists who just met begin jamming on Children are ubiquitous in the a version of the Eagles'"Hotel Cali- park nowadays,but there was a bit- fornia."A bicyclist zooms out of no- ter fight in 1926 when the city tried where,putting on the brakes in front m; ... .:. to build the first playground. Con of them."I came for the chorus;'he " m" servationists were alarmed that an explains, contributing a high har- `= influx of children and others would mon before away. : =^ m Y Pig Y• 'ruin the areas carefully Y manicured "It's great playing in the park but design. you have to worry about a lot of Today,Central Park is a source of roles,"says Nathan Joslyn,a stay- pride or frustration, depending on at-home dad who tries to visit the whom you talk to. park at least once a week.Joslyn re- "How could you not love this cently played a set of John Lennon People who pursue many competing interests often create conflict place?"asks attorney Fred Levine songs at the Strawberry Fields me- among the millions who visit New York's Central Park each year. before the opera begins. "It's amaz- mortal site,before he was asked to ing to think that this park exists in stop by a park attendant. sive free concerts that were once America's wealthiest and most privi- the heart of some of the most expen- And that regulation rankles John routine,they have made exceptions leged residents;on the west is the sive real estate in America, and for Williams, a small-business owner to the rule.Last year,American Ex- funkier but increasingly affluent more than 100 years, they have left who speaks wistfully of an earlier era press paid-New York$1 million to West Side.Harlem borders the park it alone." as he pushes his daughter in a hold an invitation-only concert by .on the north,and the southern tip, Elsewhere,many park-goers are stroller. Sheryl Crow in the park,an event where the wilding attacks occurred, outspoken about the recent attacks "There used to be great scenes that drew criticism from those who is a mecca for the city's booming on women following this year's here,man,"he says."It's really nice did not have tickets. tourist industry. Puerto Rican Day parade.So far,po- Even the Metropolitan Opera's "Our view is that everyone should lice have arrested 20 suspects in the now,for sure,but it used be real. annual free concerts can spark con- have access to this park, and not assaults on at least 53 women. There was a lot more music,a lot of tention. As the sublime opening everyone always does," says Dave Some dismiss the incident as a sex in the open and people were Passing reefers around too. It was notes of"Madame Butterfly"filled Lutz, executive director of the horrible aberration,yet others could the Great Lawn last week, angry Neighborhood Open Space Coah- not help but recall the 1989 rape and much more relaxed." purists shushed party-goers uncork- tion. "It's great that there are new beating of a female jogger that gave Relaxation means different things ing bottles of wine, drawing baleful baseball fields,but you need a per- the park,and New York,a black eye. to different people.At Strawberry glares in response.Meanwhile,mem- mit and have to pay a fee to use most "I wish they could make these pa- Fields,a sign spells out appropriate bers of office softball teams who had diamonds.The days when you could rades go away,because there's al- behavior."Help us protect this lawn. shown up for scheduled games Vre wander into Central Park and divide ways the potential for trouble when No: sports. Yes:reading, relaxing, angered that the opera and its 20,000 up 18 guys for a game are gone." crowds rush into the park," says sunbathing,daydreaming-" noisy fans had wiped out their plans. Similar tensions surfaced from Deborah McKenzie, a pregnant A couple necking on the lawn ap- "These conflicts over who gets to Day One. When Frederick Law mother of two who loves to relax in parently pass the test,but Matthew, use the park and what its larger pur- Olmstead created the extraordinary Sheep Meadow. "The city has got a a conservancy worker who tends poses should be are perennial,"said park,the 19th century landscape de- lot of new rules about what you can Strawberry Fields,is not pleased by Elizabeth Blackmar, a Columbia signer envisioned a magnificent and can't do in the park,but I think an electric guitarist who is sitting on University history professor and co- open space to rival the grand public that's a small price to pay for enjoy- a nearby rock playing Jimi Hendrix author of"The Park and the Peo- places in European cities,as well as a ing the place in peace and quiet." riffs.He patiently tells the man that ple." "And there will never be an democratic gathering spot. Others wish the park could be left this is a noise-free area.The guitarist easy solution to this,because while Wealthy New Yorkers quickly alone. "What are you going to do, smirks,picks out the notes to"Beau- the park may be a haven,it reflects took to the park on foot and in car- put a policeman in here for every tiful Dreamer,"then walks off in a all the people surrounding it." riages,but political fights broke out person and ruin it?"counters John huff. Indeed, Central Park's borders over the rights of working lass peo- Nelligan,a sax-playing skater(and "In this park,you have to remind highlight four different worlds,all of ple.It.was years before the city fi- market researcher)gliding past Be- people that they can't just impose them key ingredients in New York's nally agreed to hold concerts on thesda Fountain. "At some point, themselves on others," says Mat- social min On the east are some of Sundays,the only day when less-af- this has to be a natural,spontaneous thew, spearing cigarette butts. "It place." works best of all if people get along:" ® CENTRAL PARK I,.. & { { The Lake a . r , p ' v �3 v ; Reservoir r✓ Hnrlen �".fie s, 3�i1 3 M y r-"' �.i....,a„5%'•` '�"r '� � YC t � r trf � >szwF ;" "«,.. us.�w-'rs�s " ,: .rY',. i.`: �3 ¢3' .r`�.i:=h'•* �'w 31e ti.*,? S:`.it a..S£� a:' -:vy:£.£i^ .�z8 Ai6s;`.:ig's'Ja:a ...s'iL,........G''!�h'zLtf....�l�k+...+:fl—+L i .,z..st'a• ' i,$'.^a"YES. §�,z r;.c_ ..q i,.r.,i.:%k'. :'t LOCAL NEWS/WEATHER/EDITORIALS SECTION FB TUTAY METRO JUNE 2'.2000 CC LI08 Ang¢l¢8 1 of 9 Shot in Athens Park Drive-By Dies LOS ANGELES—One of the nine people wounded last week in a drive-by assault-rifle shooting at Athens Park died over the week- end,authorities said Monday. Melvin Williams, 29, of Los An- geles succumbed to gunshot inju- ries Friday night at a local hospital, said Los Angeles County sheriff's spokeswoman Brenda Johnson. Williams was among a group of men and boys hanging out in the Willowbrook park Thursday at 8:10 p.m.when a white truck pulled into the parking lot and two men leaned out firing assault rifles. Authorities said that the `attack was gang- related and that most of the victims were members of the Athens Park Bloods. Williams was a father, said an acquaintance. No arrests have been made. Seven of the shooting victims have . ll LOCAL NEWS/WEATBER/EDITORIALS SECTION JUNE 29,2000 cc METRO ff*.G*V"MVM .School Employee Investigated in Molestations,Theft COMPTON—School officials and the Los Angeles County Sheriff's Department said they are investigating charges that a school employee has molested several high school . students and embezzled an undetermined amount of money from the school district. School officials declined to identify the employee but said the person had been placed on administrative leave. Fausto Capobianco, spokesman for the district,said that parents of several children had filed complaints with the district and with the Sheriff's Department. He declined to say whether the alleged victims were boys or girls. Capobianco said the sheriff and a private investigative firm hired by the district were still investigating the charges. District offi- cials have concluded that 'wrongdoing occurred,"he added. Sheriffs investigators confirmed the in- vestigation. School board member Basil Kimbrew held a news conference Wednesday to complain that authorities were not pursuing the investigation aggressively and that the state-run school administration has tried to cover up the matter.Kimbrew contends that alleged victims include at least five students, including boys and girls. District officials, however, insist they are taking the matter very seriously. h � G Coo Angeles gimco OjMilDRIERNEe WWWIATFUMODM THURSDAY,JUNE29,2000 DAD,Y 2Se aRCUKAT10N:1311,785 DAILY/0114,EBBSUNDAY Lverum 2ODO/1x/1AeAGB D61GNAMAUMHIGM A20 THURSDAY, JUNE 29, 2000 Resident Kills a Medical Chief, Himself in Seattle From Associated Press SEATTLE—A resident physician who had recently been fired walked into the office of a high-ranking doctor, shot him to death and then killed himself Wednesday afternoon at the University of Washington,campus police said. Staff members outside the office's closed door heard raised voices, then at least one gunshot,then a few minutes later another shot. University police found both men dead and a handgun nearby. "It's a tragedy.We have two highly educated men gone,"campus police Capt.Randy Stegmeyer said. The victims were identified as Dr.Rodger C.Haggitt,57,director of the University of Washington Medical Center pathology division, and Dr.Jian Chen,a resident physician from Taiwan who was in his 30s. Chen apparently had an appointment when he entered Haggitt's private office in the Health Sciences Building,said Stegmeyer. He said Chen had recently been told that his contract as a resi- dent would not be renewed.Such a termination for a resident,a doc- tor nearing the end of his training,would harm his prospects for fu- ture employment. Police said they believe Chen had been at the university for about a year. Chen apparently shot Haggitt,then himself,police said. Seattle police homicide detectives were called to help with the in- vestigation. University spokesman Waiter Neary said the shooting occurred away from the areas where patients are treated. The giant health science complex of interlocking buildings includes the medical cen- ter as well as doctors'offices,classrooms and research laboratories. Haggitt,a doctor of anatomic pathology,joined the university in 1984 as director of the division of hospital pathology.He was mar- ried with three adult children. �, ��•1 v Coo Angeles OiTaeo WEDNESDAY,JUNE 21,2000 DAD.Y 254 ON THE UMRN6f:WWW-_MF3.00M C0rYY1g1Y7000/Q/11I PAGES DEW"TEDAREASHIGHM CIRCULA720N'LI I1.79S DAILY/138449SUNDAY 1 , x� y ',y'-',:lid rq •:' .:.. 1 CA.ROLYN COLE i Los Angeles'nmes Tires were stolen and windows broken at Winston Tires near Staples Center after the Lakers game. Probe of Staples Melee Ordered ■ Violence:Mayor backs L"D Privately,Democratic officials may have shud- dered along with millions of other TV viewers when handling of postgame rampage,voices they saw coverage of a jubilant mob running amok confidence on Democratic convention. through the blocks surrounding Staples,leaving a trail of burned cars,smashed windows and uprooted trees in the spot where Gore plans to accept the By MITCHELL LANDSBERG Democrats'presidential nomination. and JOHNATHON E.BRIGGS Publicly, party officials insisted there was noth- TIME.S STAFF WRITERS ing to worry about—in part because the Los An- geles Police Department will be joined in August by Mayor Richard Riordan on Tuesday ordered an federal and state law enforcement officials with dec- investigation into the melee that followed the Lak- ades of experience in convention security. ers' NBA championship victory, but said he was "We are confident that the joint law enforcement confident that police could prevent any similar out- team comprised of federal,state and local agencies breaks of violence during the Democratic National will effectively manage all of the security issues sur- Convention in August. rounding our convention,"convention spokesman Police Chief Bernard C.Parks echoed the mayor, Peter Ragone said,stressing the word"joint." saying he was satisfied with his department's han- In fact,despite the ugly images of fans torching dling of the unruly crowd outside Staples Center on police cars and looting businesses with-seeming im- Monday night, and that he is convinced it did not punity, most city officials seemed to rally around offer a frightening preview of what Vice President the LAPD and praise its relatively restrained han- AI Gore and his party can expect this summer. Please see STAPLES,Al V..� � Ms. STAPLES: Backing LAPD Response, Riordan Orders Probe Continued from Al Remarkably,only about a dozen dling of the disturbance. Police ■VIEWS OF MELEE people were injured in the melee, made only 11 arrests outside the Where some saw a riot,others and none seriously.Of 11 people ar- arena Monday night,and seemed to saw drunk revelers dancing rested, eight were charged with be going out of their way to avoid around bonfires.Bi misdemeanors.As Riordan,Parks provoking the incendiary crowd. ■ATTACK ON SHAQ and others noted, the outburst For the most part, officers stood Shaquille.O'Neal's filming of a paled compared to deadly riots that back and watched while young post-game ad has angered have broken out in other cities that men,many wearing Laker jerseys striking commercial actors.Cl have won major sports champion- and shouting the praises of their ships. heroes,set fire to vehicles,includ- ever, in that the potential for In 1990, seven people died and ing two LAPD patrol cars, and trouble lies not in spontaneous hundreds were hurt in Detroit in threw trash cans and road con- outbursts of misdirected joy but violence that followed the Pistons' struction barricades through the in well-planned protests specifi- victory over the Portland Trail windows of nearby businesses. cally designed to foil their best- Blazers in the NBA championships. "Most of us thought the response laid plans. Two years later,about 200 people was excellent,"City Councilwoman Monday's out-of-control celebra- were injured and hundreds of vehi- Jackie Goldberg,a frequent critic tion caused$500,000 to$750,000 in cles were damaged in Chicago after of the LAPD,said during a council damage to businesses in the area the Bulls beat the Blazers for the discussion of the unrest.Compared immediately surrounding Staples, championship. with outbursts in other cities after according to Ashod Mooradian,ex- Similar disturbances have fol- sports championship victories,'eve ecutive director of the Figueroa lowed victories in the Super Bowl, did better,"she said. Street Partnership,a business im- the World Series and,in Canada, provement district that encom- hockey's Stanley Cup champion- Confidence About passes the area hardest hit by the ships- disturbance.At least 74 vehicles at August Convention seven car dealerships were dam- Officials Praise aged. At a morning news conference, "Where were the police?"asked Police Response Riordan stressed that the circum- Stephen E.Auth,president of Kai- stances surrounding Monday ser Bros. Oldsmobile, which was Kent Smith,executive director night's game bore little resem- damaged by the rampaging crowd. of the downtown fashion district's blance to what police will encoun- "I'm disappointed." business improvement group,said ter in August. At Prestige Products auto acces- he came to Los Angeles from Van- "Last night was essentially a sories,where windows were shat- couver,Canada,where police were spontaneous event," the mayor tered, manager Mike Rice said: criticized for being overly aggres- said. "The[Democratic conven- "My concern is the lack of fore- sive in response to rioting that fol- tion]will be a very disciplined, thought by police." lowed the Vancouver Canucks'loss well-handled,businesslike event. Trash,burning rubbish,news- in the Stanley Cup championship in The controlled areas around Sta- paper stands and remnants of 1994. ples will be much larger than last burned vehicles littered the After watching the LAPD on .night,and anybody who wants to streets Tuesday morning. It ap- Monday, he said: "They took shame and anger that we saw,not get into those controlled areas peared as if fans had taken any- their time. They let the crowd Laker fans, but a few hundred will have to have credentials.I'm thing that wasn't nailed down and vent their frustrations. . . .It's hoodlums trying to spoil our cele- not saying we can't learn some- thrown it into the street. At one obviously a tough call whether bration.These are not fans.They thing from last night, but I am intersection, fans had toppled a that was the right response. . . are losers who only know how to saying that they are very differ- soft drink machine in the middle but if you go in there with a trash our city.They are vandals. ent events.I am highly confident of the road. Others hurled metal heavy hand,it could really incite We are not going to let a few hun- that we will do the best job in se- trash cans and road construction the crowd." dred vandals spoil a glorious cele- curity of any convention in his- barricades through storefront At a news conference Tuesday bration for millions of Angelenos. tory," windows. afternoon,Staples Center Presi- Plans are moving forward rapidly Riordan ordered Parks, Fire During the night,the acrid smell dent Tim Leiweke said he had to have a great parade . . . so Chief William Bamattre and De- of smoke and burning rubber "great respect"for the LAPD's• that Los Angeles can congratu, partment of Transportation Man- wafted through the streets from response to Monday night's ram- late our Lakers on their incred- ager Frances T.Banerjee to look smoldering piles of trash.Amid it page.He defended the decision to ible season and their champion- into the handling of the postgame all,celebratory fans continued to televise the game outside the ship trophy." melee and report to him before the walk and cruise the streets honking arena. "This was not an incident And the Lakers are doing what convention. their horns,cheering for the Lak- that revolved around the Jumbo- they can to help Angelenos put "We need to learn the lessons of ers and waving purple and yellow Tron,"he said."This was an inci- those few hours of destructive last night also so we will have an banners. dent where we had hooligans and rowdiness behind them. outstanding and safe Democratic Vandals also destroyed trees, they are coming down here re- Star center Shaquille O'Neal National Convention in August," tearing branches off to break win- gardless,because this was a focal has promised to buy a new squad the mayor said. dows with or to use as fuel for their point." car for the LAPD,and the team Law enforcement officials have fires, which numbered about 20. Staples Center officials said they as a whole and Staples Center will been planning for the convention Many of the trash bin and street are expecting up to 250,000 people split the costs of replacing the for the last year. Unlike Monday fires were allowed to simply burn to turn out today for a parade to second destroyed police car,team night,when thousands of fans were out, said Los Angeles Fire Capt., honor the Lakers. Law enforce- spokesman John Black said Tues- allowed to congregate in front of Steve Ruda. ment officials said there will be up p y. Staples—in fact,were encouraged "We weren't going to risk offi- to 1,000 officers from the LAPD, daO'Neal actually wanted to buy to do so by the presence of a giant- cers getting hurt to stop a blaze the city Fire Department and pri- both cars but was persuaded to screen television monitor carrying that wasn't going anywhere," he vate security teams along the pa- let the team pay for one. coverage of the game—police plan said."There was definitely a mob rade route. to seal off a large area surrounding mentality out there." Riordan insisted that the parade "He didn't want anything to mar the celebration and the good Staples during the convention and As they tried to get away,driv- will be held despite Monday's dis- allow only those with credentials to ers crushed glass and plastic under turbance. feeling in the city,' Black said. enter., their wheels and sometimes had to "Last night,we all witnessed Times staff writers Elise Gee,Jeff. Their challenge will differ from swerve to avoid bus benches and pride and shame,winners and los- rey Oettleman and Peter Y.Hong also that posed Monday night, how- other obstacles. ers,"the mayor said."It was with contributed to this story. T .L�A-;..-V Fan Violence Some of the incidents of fan violence after pro teams won a championship: City Sport Year Arrests Summary S.F Football 1985 184 Bonfires,rock- throwing Montreal Hockey 1986 9 Looting,$2 million in damage Detroit Basketball 1990 85 Seven killed, hundreds hurt Chicago Basketball 1991 100 Scattered looting, gunfire Chicago Basketball 1992 1,000 2 officers shot,61 police cars damaged Montreal Hockey 1993 115 168 hurt, including 49 police officers Chicago Basketball 1993 683 3 killed Chicago Basketball 1996 650 38 stores looted or damaged L.A. Basketball 2000 11 Vehicles damaged or set afire, Sources:Times staff and wire reports,LAPO scattered looting _ Los Angeles Times Postgame Hot spots Monday night's rampage began with bonfires,then spread to vehicles and businesses.A look at some of the incidents around Staples Center: oTroller burned UPS truck attacked W'LSHIBE eLv nH sr. Store vandalized ue & 81H ST. L Store vandalized, r" tieWl Isi_. . looted QBuilding vandalized g11t sl 9rH sr T�1 Police cruiser set ablaze } 911A ST iY,7 3j a OLYMPIC BLVD ®MTA bus set afire 0 Reuters news SUY c. um sr vandalized Store vandalized,looted ' "3 12TIl Sr. 0 Several vehicles torched and vandalized at car Conventlonn dealerships Center to es Center Pico NO. Burger King vandalized c F z a ®Fire hydrant opened and center f street flooded g © Ei Three businesses g vandalized and looted $ 1nH sr. Pollee cruiser torched r;Parking uo io ®KCBS news van vandalized HBJOION BIVD. Sources:LAPD,L.A.Fire Department,staff reports LESDE CARLSON/Los Angeles Times i A'I$ WEDNESDAY, JUNE 21, 2000 LOS ANGELES TIMES jr • , LUIII SIIEPLER Luz Angeles 9'nnrs WALLY SK LIJ , Lns Angeles Tlmes Laker fans, left, celebrate team's victory around one of the bonfires that were set outside Staples Center as police officers cruise 7th Street in downtown Los Angeles to quell further disturbances. ■ Violence:Views differ widely among witnesses O to game's aftermath. By CARLA HALL TIMES STAFF WRITER Some Laker fans saw hardly O any police. Some saw too many. One saw the police chief stand- ing around in civilian clothes. Where some saw a riot,others saw drunken revelers dancing around bonfires. "I work in the music business, I've spent time on the road with groups like Metallica," said Ron Laffitte,vice president of A&R for Capitol Records. He said the Z outside of Staples Center looked like a giant mosh pit. "I was CD standing by the front door when they had the fires going on. I said,'Oh,cool,looks like a Rage Against the Machine show.' ' Those lucky enough, and af- fluent enough,to get a seat in- side Staples Center for the sixth O game of the NBA finals had to venture, at some point, into the y ;postgame frenzy.To TV viewers, it looked less like euphoria than chaos. O Screenwriter Jonathan Fer- nandez said he first faced the crush of people inside Staples Center. Then, there was the throng outside. "I said to my friend, 'This is really strange. There are no police.'" Fernandez walked out of the Staples Center on 11th Street. When he turned the corner onto Figueroa Street, he saw eight Los Angeles police officers standing in a line—the only cops he saw all night. As he made his way to Olym- pic, he saw a crazed mob jump- ing up and down on cars. He called 911 from his cell phone."I said,'Look,you've got people ri- oting on Olympic and Figueroa, and there are no police.' They said,'OK, sir,we're going to get there.'"But as Fernandez kept �. walking down Olympic toward his car on Grand, he saw more people jumping on cars. A taxi driver sat helpless as people pounced on his taxi. Still no po- lice. He called 911 again. "Sir, you have already called," the emergency operator said. Fernandez made it safely to Please see OPINIONS,B7 Z Continued from Bl hers had a rougher time. One got "I don't know what changed and his car. knocked down and another, she made it weird. When I got home O "Having lived in L.A., I know said,got shot at.None was injured. and watched television,they really how to deal with riots and crowds," "I'm sorry every one of those made it seem much worse than it he said. "You want to become part people wasn't dealt with," she said was. They'd show a close-up of a of the mob. You just sort of march of the vandals. "They're going to small bonfire and say, 'L.A.burn- along and say 'Go, Lakers!' You have to live with themselves. This ing,film at 11.'" • want to be low profile, you don't shouldn't overshadow[the Lakers] Others couldn't resist making want to make eye contact." victory. Our guys brought home a fun of the image of madness po-- o Actress Dyan Cannon, a Laker ring." trayed on TV news. fan often seen on TV at games, Many of the fans who saw the "I'm just leaving the Staples stayed inside Staples after the game tarried after the final buzzer Center now,"said Marty Adelstein, Laker win to visit with players.She to watch the presentation of the a partner in the talent agency Er.- and a girlfriend finally left in a pri- NBA championship trophy and the deavor, late Tuesday afternoon. �.�+• vate car with a hired driver—"We MVP award. They chatted with "I've been here all night." park downstairs where the Lakers equally giddy fans and waited in Adelstein said he,in fact,had m park." long lines to buy Laker T-shirts. problems leaving the arena— "All we could see were scream- Once outside, many milled around though he and the thousands of ing fans," she said. The crowd, as with friends and strangers celebrat- fans inside Staples Center were she passed,was more jubilant than ing. stunned to learn shortly before the malevolent. "I was yelling out the "We were kind of mingling, end of the game that there were v window and we were high-living high-fiving people we didn't know. thousands more outside. A tele- with people on the street,"she said. People were really in a jubilant vised image of the outdoor crowd "It was fine." mood," said Joel Amsterdam, a flashed on video screens in Staples But Cannon says some friends of vice president at Elektra Records. during the fourth quarter. CD 1�• "I was thinking, 'Man, it's going out of Staples Center, heading irf here forever,' " said Jack Bur- to be one heck of a welcoming north up Figueroa.He said he was ditt. "As soon as I got outside, I party when we leave,'" said Bud met by a line of 40 police officers in thought,'Uh oh.'" Treece, executive director of the riot gear advancing south toward Stuck in traffic gridlock, he Assn. for Los Angeles County him and his girlfriend,even though watched as fans hopped on cars, o Deputy Sheriffs, who was at the there were only a handful of people making their way across the street • game. on the street at the time. atop hoods and trunks. One fan Fans had differing views of the "And we were not threatening," grabbed a Laker banner off a LAPD in action. Orthopedic sur- said Laffitte. "Me with my three slowly passing car, he said. The geon Don Sanders walked out of bags of T-shirts and my skinny girl- driver got out to argue for the ban- Staples Center at 11th and Figue- friend." ner's return."I was with my daugh- o roa and ran into LAPD Chief Ber- Laffitte thinks police mishan- ter,she's 20.She was freaked,"said nard Parks. dled the revelry. Burditt,a TV producer. "Chief Parks was standing right "I think if they had hired concert "Mostly people had their win- �. at a blockaded entrance," Sanders security instead of police, they dows open and were shaking said. "He was there, his wife was would have had a much more hands with people outside," said there.He was kind of observing." peaceful solution," said Laffitte. attorney Michael who He recalled that Parks was not in "I've seen a lot more radical re- also spent half houurr inchinching his uniform and was standing near a sponses at heavy metal concerts way two blockss to the freeway. black car.Sanders,who had chat- than I saw at Staples Center." "The people I saw were mostly OP young and mostly wild with ted with Parks at a previous Laker People who stayed late had to �. game, waved at him and Parks decide whether to stay even later thusiasm, dancing around and waved back. to avoid the pandemonium outside. drinking." Laffitte, the music executive, "As soon as they lock this place Times staff writer Beth Shuster coo- bought T-shirts and made his way down.I thought,'We're going to be .tributed to this story. CD LOCAL NEWS/WEATHER/EDITORIALS . � ~ --_—_--'—__-- -_- -__—_ _ky METRO Dus�u�x�a0Koee o.wEz/.o= n� Zi Anopenfirehydrort. above,sprays revelers at Olive and Olympic in downtown Los Angeles. SomeLahers'fens described anarchy,but another said: "When |got home and watched television,they really made it seem much worse than it was.They'd show a close-up ofa small bonfire and say. 'L.A. burning,film at11.' ^At right,after waiting tn leave Staples Center because ofmelee, Sha0uiUo O'Neal is escorted byasecurity guard to his car. oARYnmEDMm .above: moLmnmcfight uvxn:aurimu -Yquth behaving badly: Concert fans find it easy to shed societal constraints<BR><E.../EM Page 1 of 2 r Sear ,l r B W B News&Opinion Today's Front Paae LOCAL C:AL. & REGIONAL. Local!Regional National Youth behaving badly: Concert fans find it easy to International shed societal constraints columnists Inside Track by J.M. Lawrence Opinion Obituaries Monday, May 29, 2000 Video News i CNN Photo Gallery With hyped-up fans rushing the barricades and wild women lifting Special Reports their tops at the behest of the Jumbotron caption writer, the WBCN Forums!Talk Back River Rave may have set the stage for another summer of concert Lottery Resi,lts debauchery. Weather Farmer's Almanac Long gone are the days when The Who busted up their guitars at Traffic Tanglewood while the stunned crowd just sat back on their blankets. Business Today ' 'They were too stoned to do anything back then," recalls Robert R. Spot Butterworth, a psychologist who wonders about all the acting out" Entertainment going on these days. Lifestyle Services!HelpAn integral part of the rock 'n' roll show ai Advertisers experience for a number of concertgoersSH carfind.con, nowadays seems to include a melee, some _ Contact Us indecent oxposure and a trip to tho local w Crossword Puzzle emergency room. More than 60 were arrested •. Home Deli.,ery at the River Rave Saturday, mostly for drugs, homefind.com and dozens were treated for injuries. Horoscope iobfind.com From the arson fires and rapes that marred News Tips the 1999 Woodstock show last summer, a Personals new era in outdoor concerts has been born in , Search which the audience demands to put on a Special Reports show of its own, critics have noted. Police arrest people that Current Count for Boobs Seen: 1,041," burst onto the field from oil BIN declared the WBCN web site yesterday. the stands at the WBCN River Rave. (Staff photo coverage by Michael Seamans) Bourbon Street behavior got kicked to Hia ` in another level at the River Rave, according to concertgoers, when not NNonly the crowd taunted women to ' 'show us your (expletive)," but the giant screens demanded some action as well. ouU The news that several female concertgoers submitted to Big Brother's demands and flashed the crowd disturbed activists for women around Boston yesterday. Was there any pressure for the men to show off their genitalia?" e-news asked Susan Reverby, professor of women's studies at Wellesley uo�N-tv�o-, -� T http://www.bostonherald.com/news/local_regional/conc05292000.htm 6/28/2000 =Yquth behaving badly: Concert fans find it easy to shed societal constraints<BR><E.../EM Page 2 of 2 Srt,a College. rce "ke66 n .V o faked- Reverby called men's chants for doffed tops male herd behavior." I he Source The act of baring breasts at a rock concert doesn't carry quite the Al status of female liberation that U.S. Women's Soccer champ Brandy Chastain accomplished by whipping off her shirt in victory last year at the World Cup, she added. AH ArcMve The soccer one was more a sense of a woman-claiming-male turf moment," Reverby said. Male soccer champs have doffed their shirts in victory for years. Boston attorney Wendy Murphy, who represents victims of sexual assault, questioned who would encourage an atmosphere in which laws against public indecency were ignored. ' How did this actually evolve to a place where the women thought it was acceptable and they wouldn't get in trouble for it?" she said. The flashers and their taunters are both contributing to a scenario that's bad for women, according to Murphy. It creates an atmosphere of disrespect for women as a class and that in turn makes it very difficult to prevent gender-motivated violence," she said. ' 'It's all part of our collective cultural responsibility to appreciate the connection." Groping rivaled moshing at Woodstock and drew attention to a new surge of sexism from angry white boy groups like Limp Bizkit and Korn. Years ago, women showing their bare breasts was great fun, rapper Kid Rock said in a recent interview. But male concertgoers have gone from just looking to touching, prompting Kid Rock to take it on himself to remind them to keep their paws in check. Like, how stupid is that?" he told the Baltimore Sun. With little to rebel against these days, rock 'n' rollers seem to be getting their fuel from flouting basic social conventions, Butterworth said. 'There isn't any unifying thing," he said. ' 'There's no external factors. There's no draft, no war, the economy is good. This is what you get when you get a lot of well-fed affluent young people with nothing else to do." tRU n. iv_ e' rse , ,' , I,� u Copyright by the Boston Herald and Herald Interactive Advertising Systems,Inc.No portion of Boston Herald.com or its content may be reproduced without the owner's written permission. t+\,-,Vo, T http://www.bostonherald.com/news/local regional/conc05292000.htm 6/28/2000 l r LOS ANGELES TIMES WEDNESDAY.TUNE 21,20W A3 California and the West dtfs Murder Trial Otters Insight Into Risin Violence at Youth Facilityg ■ Courts:Killing was a youth authority and the more repres- somehow being detected?" Deputy sive era that followed.Some juvenile Public Defender David Negus asked watershed between a period justice experts say living conditions the jury last week. of laissez-faire management for wards throughout California have It is a question that has haunted g become much more harsh. many workers at the 1,300-inmate in- and a more repressive period Over the next six months,jurors in stitution. "It's incredible that it hap- the trial of inmate James Ferris will pened,"said Henry Vanderweide,who that followed at CYA center. get a glimpse of life at the Heman G. was removed as superintendent sev- Stark Youth Correctional Facility in eral months after Baker's death. "It's Br JAMES RAINEY Chino,whatwas supposed to IV the .very disturbing." T'ME9 STAFF WRITER state's mosV.secure juvenile lockdo. Vanderweide came to cotirt hid Security was so loose on Aug. 9, week as testimony began in the death RANCHO CUCAMONGA—On a 1996, that Ferris wandered his unit penalty trial.Two of the institution's broiling summer day four years ago, nearly at will, his cell sometimes left chaplains and several former em- someone trapped a youth counselor in unlocked, even though he was a con- ployees also sat in the courtroom. a mop closet at the young men's victed killer. It was so loose that Baker's husband, Donald,and daugh- prison in Chino, then stabbed and Baker's colleagues did not know she ter,Tiffany,who both work as guards strangled her. was missing,much less being brutally in adult prisons, looked on from the The killing of Ineasie M.Baker was attacked just feet from where they front row.Other youth authority staff- at once unprecedented—the first of a worked.It was so loose that the assail- ers,relieved of duty as a result of the peace officer in the history of the 55- ant went undetected, even as Baker's killing,are scheduled to testify. year-old California Youth Authority— body was carted past a guard station Around the state, corrections offi- and yet somehow in keeping with the and three checkpoints to a dumpster cers chart the progress of the case in climate of the increasingly violent in- near the prison's central yard. their newsletter. "They follow it stitution. The defense told jurors that Ferris closely,"said Donald Baker,49."It's The inmate accused of killing Baker might have been involved after the like one of their sisters who they lost." went on trial for murder here last crime,but there is no evidence that he The repercussions seem certain to week.The case offers the first detailed is the killer. continue even after the trial. Still public accounting of an episode that "How does a lone person get a 143- pending is Donald Baker's federal law- rocked and then remade the state's pound woman out of this storage suit. He has accused several of his youth prisons. room, past the control center and wife's co-workers of"deliberate indif- Baker's slaying was a watershed be- down through the day room,past the ference"to warnings of danger before tween a period of laissez-faire manage- parole agents' offices, out and down and during the attack. ment and relative nurturing at the the ramp to the dumpsters, without Please see CYA,A]l9 �-4:VN-Oo-A Y� ,,CYA: Trial Offers Insight Into Rising Violence Continued from A3 In his own painstaking three-day state- one of their colleagues must have been in- A state inspector general has been prob- ment to the jury, defense attorney Negus volved in the killing. ing the youth authority for a year.Investi- said he will not be able to show exactly Investigators.from the Chino Police De- gators found that employees at the Chino how Baker died,because the case is"like a partment. and district attorney's office re- prison engaged in a pattern of excessive puzzle with no solution. . . .There is no ject that as rank conjecture. But it is a force.Some of the 1,300 prisoners—ages 17 certain answer." theory that continues to circulate in the to 25—were handcuffed and slammed into He conceded that Ferris'bloody print was close-knit culture of correctional officers. walls, shot point-blank with riot guns, found at the scene.But Negus added that Baker's family and supporters have forced into fights with rival gang members the print"could just as easily point to[Ferris grown tired of the speculation,which they and locked down for days on end, the in- as]an accessory after the fact in the case.In said must not overshadow her service and vestigators found. They came to believe that case,then you are going to have to vote ultimate sacrifice. that the punitive measures,at least in part, not guilty'on the only crime with which Mr. . A black stone monument stands in were a backlash after Baker's death. Ferris is charged,and that is murder." memory of the slain counselor opposite the "This case really rocked the youth Negus called the C&D cell block where main entrance to the Chino'prison.Smaller authority,"Negus told the San Bernardino Baker died so disorganized that "for the tributes have been installed at many of the Superior Court jury. "This is a case they most part, the staff does not know who is youth authority's 10 other institutions. are still squabbling about and battling there and who isn't," giving many prison- In the lobby of the Rancho Cucamonga about in their internecine struggles." ers access to the closet where Baker was courthouse, Baker is one of 38 peace offi- In his opening statement,Deputy Dist. attacked. cers listed beneath a statue of a fallen offi- Atty. Michael Ramos sought to keep the But investigators from the institution cer.But even that monument,like much in focus on Ferris, the now 28-year-old de- quickly focused on Ferris,failing to inves- the case,has now been shrouded. fendant. Ferris was sent to prison in 1989 tigate suspicious actions by other prison- Negus argued in March that the peace' for killing a 55-year-old Orange Count; ers,the defense attorney said. officers'memorial could improperly influ- nurse who had befriended him. Even when a muscle-bound ward,who ence jurors.Judge Ingrid Uhler agreed and "Whether the institution was lax or an had been close to Baker,told a staff mem-- the evocative memorial has been covered individual was lax in their duties may come ber not to go into the storage closet the with two plywood boxes. out during the trial;"Ramos said in an in- morning after the killing, investigators' On Thursday morning,,--Negus told the terview."But that is not a defense to mur- suspicions were not piqued, Negus said. fury that Baker was actually off duty at the der. . . .Absolutely all the evidence will The prisoner ostensibly wanted the staffer .:,time she died.The veteran counselor,ig- indicate this was done alone." to look elsewhere for bats for the day's noring safety guidelines,had removed her The prosecutor told the jury that Ferris softball game. But his action further de- duty belt and personal safety alarm and launched his attack on Baker,42,because layed the discovery of the murder scene, was hanging around the unit after the end he feared his imminent transfer to the Negus explained. of her shift when she was attacked,Negus adult prison system.Desperate to escape, The four years that have passed since hassaid. Ferris killed the veteran counselor to get Baker's death have done little to quell the The argument could be a critical one for her keys,which would have given him easy mystery. Ferris' defense team examined Ferris, since the killing of a peace officer access to an outer fence that had already several theories that have swirled through can be punishable by death. been cut,Ramos said. the institution, including suggestions that Baker's family and some former col- One former ward is expected testify that Baker was targeted as an African Ameri- leagues fume.at the suggestion that she Ferris followed Baker into the storage closet. can employee who ran afoul of the prison's was not fulfilling her duties:when she died. The defendant's bloody palm print was found dominant Latino gangs, as a harsh task- Donald Baker called It "insulting." on a cardboard box in the closet.The last of master who was cracking down on smug- Leonard Wilson Banks,a youth authority several searches of Ferris'cell finally turned gong of contraband or by prisoners who chaplain, said he wrote td.the court gro- up the missing keys,taped together and bur- wanted to send a message to Donald Baker, testing the covering of tht peace officers' ied in white powder inside a can of Ajax,Ra- related to his work in the adult prisons. memorial. mos said. Other witnesses will be able to Some current and former employees at . "There was.a lot of unhappiness about place the defendant near the dumpsters the facility have a gnawing suspicion,al that at the inetitution;'.Bgnks said. "Peo- where the body was left,Ramos said. though they cannot prove it, that at least ple were really upset about that." saSw �X°� ` 3 i d' CAROLYN COLE i Los Angeles Times James Ferris looks at defense attorney during break in opening statements in trial on charges of killing worker. Y. CAROLYN COLE ; Los Angeles Times Donald Baker, victim's husband, is briefed by prosecutors. At right, CYA worker and victim Ineasie Baker. Council/Agency Meeting Held: De Crre� d/Continu o: --7— r— 0� ❑ Approved 0 Conditionally Approved ❑ Denied _ 7 :- City Cler 's Signature Council Meeting Date: June 19, 2000 Department ID Number: CA 00-09 CITY OF HUNTINGTON BEACH REQUEST FOR COUNCIL ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEM ERS SUBMITTED BY: RAY SILVER, City Administrator OW GAIL HUTTON, City Attorney PREPARED BY: GAIL HUTTON, City Attorney SUBJECT: Establishing Public Nudity Prohibition and Modification of Penalties for Violation of Sex Oriented Business Regulations Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status,Attachment(s) Statement of Issue: Should the City establish a City-wide probhibition of public nudity and enforce all sex oriented business regulations civilly? Funding Source: None. Recommended Action: Continue presentation of this issue to the July 5, 2000 City Council meeting, to allow for additional time to further research the legal issues regarding the regulation of Sex Oriented Businesses. Alternative Action(s): Do not continue the subject matter. a REQUEST FOR COUNCIL ACTION MEETING DATE: June 19, 2000 DEPARTMENT ID NUMBER: CA 00-09 Analysis: Additional time is required to research the enforcement of ordinances pertaining to public nudity and regulation of sex oriented businesses - administratively versus criminally in view of recent studies from other cites and cases. Environmental Status: NA Attachment(s): City Clerk's Page Number No. Description RCA Author: Lazarus delay sob -2- 6/15/00 11:11 AM RCA ROUTING SHEET INITIATING CITY ATTORNEY DEPARTMENT: SUBJECT: Establishing Public Nudity Prohibition and Modification of Penalties for violation of Sex Oriented Business Regulations COUNCIL MEETING DATE: June 19, 2000 RCA ATTACHMENTS. STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attome Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable _ Commission, Board or Committee Report (If applicable) Not Appllicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED' RETURNED FORWARDED, Administrative Staff Assistant City Administrator Initial City Administrator Initial rcity Clerk EXPLANATION FOR RETURN OF' ITEM;:. Only)(Below Space For City Clerk's Use CITY OF HUNTINGTON BEACH MEETING DATE: June 5, 2000 DEPARTMENT ID NUMBER: CA 07-00 Council/Agency Meeting Held: �3—S— Oo Deferred/ oritinued'to: 1 1—Oa ❑ Approved ❑ Conditionally Approved ❑ Denied City Clerk's Signature Council Meeting Date: June 5, 2000 Department ID Number: CA 07-00 (�/ �`��'',.�+�B��n.-fiVv'e'4✓ �7�t. � ,..'Yia'7 — A-�� h.�-cl" ��yy/ d� /5 O6 _ CITY OF HUNTINGTON BEACH REQUEST FOR ACTION t, SUBMITTED TO: HONORABLE AND MAYOR PETER GREEN AND MEMB S':COF S2;,,- :P r, ,THE CITY COUNCIL 9& Y.. L HUTTON, CITY ATTORNEY and SUBMITTED BY: RAY SILVER, CITY ADMINISTRATOR PREPARED BY: dclL HUTTON, CITY ATTORNEY �a RONALD E. LOWENBERG, CHIEF OF POLICE SUBJECT: Establishing Public Nudity Prohibition and Mo 'fi tion of Penalties for Violation of Sex Oriented Business Regulations 6Rs7 No. 341 j P,,, aRo No, 3�jo Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status, Attachment(s) Statement of Issues: Should the City establish a City-wide prohibition of public nudity and enforce all sex oriented business regulations civilly? Funding Source: None. Recommended Action: 1. Adopt Ordinance No. 340 amending Huntington Beach Municipal Code Chapter 9.36 establishing a City-wide prohibition of public nudity. 2. Adopt Ordinance No. 3' 10 amending Huntington Beach Municipal Code Chapter 5.70 limiting enforcement of sex oriented business regulations to civil remedies. Alternative Action(s): Do not adopt Ordinance Nos. 3461 and SOBRCA -2- 5/24/00 3:53 PM REQUEST FOR ACTION MEETING DATE: June 5, 2000 DEPARTMENT ID NUMBER: CA 07-00 Analysis: In May, 1999, City Council considered an amendment to Huntington Beach Municipal Code Chapter 9.36 to prohibit public nudity. Upon advise of the City Attorney, the City Council elected to delay the amendment pending the outcome of litigation on the state level. On March 29, 2000, the United States Supreme Court released its decision in the case of City of Erie v. Pap's A.M. ("Kandyland'), which upheld a municipality's right to ban all public nudity despite its "de minimus" effect on the expressive element of nude dancing. Similarly, the cities of Newport Beach and Long Beach have been successful in defending their ordinances requiring exotic dancers to wear "g-strings and pasties." However, the City of Long Beach is still litigating its ordinance on the basis of overbreadth. The ordinance modifying Huntington Beach Municipal Code Chapter 9.36 will establish a prohibition of public nudity in all places open to the public, including bars and restaurants, parks, beaches, and playgrounds. It will also be enforceable against the nude juice bar opening on Beach Boulevard. Because of the possibility that State Penal Code preempts any City criminal regulations, it is recommended that violations of the public nudity ordinance be civilly enforceable only. The Kandyland decision specifically deals with the Federal First Amendment issues. However, in California, there is still some question regarding preemption of criminal enforcement related to the regulating of sex oriented businesses. For example, the City of Anaheim is involved in two separate cases where the dancers contend that the City cannot criminally enforce.nudity regulations that overlap State Penal laws related to sexual conduct. Alternatively, the success of the City of Newport Beach in its civil enforcement efforts suggests that non-criminal enforcement mechanisms, such as administrative citations and civil injunctions avoid the preemption issue and comport with the recent Supreme Court decision. Based on similar concerns related to preemption, the City Attorney is also recommending amendment of Huntington Beach Municipal Code Chapter 5.70 regulating Sex Oriented Businesses. The amendment modifies the penalty section of the ordinance making all violations of the chapter civilly enforceable. Environmental Status: Not applicable. SOBRCA -3- 5/24/00 11:51 AM REQUEST FOR ACTION MEETING DATE: June 5, 2000 DEPARTMENT ID NUMBER: CA 07-00 Attachment(s): City Clerk's Page Number No. Description 1 Ordinance No. 3� 69 amending Huntington Beach Municipal Code Section 9.36 2 Legislative Draft of H.B.M.C. 9.36 3 Ordinance No. 3�-b amending Huntington Beach Municipal Code Section 5.70 F-4 Legislative Draft of HBMC 5.70 SOBRCA -4- 5/24/00 10:59 AM ATTACHMENT # 1 ORDINANCE NO. 340 AN ORDINANCE OF THE HUNTINGTON BEACH MUNICIPAL CODE AMENDING CHAPTER 9.36 RELATING TO PUBLIC NUDITY The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. That the title of Chapter 9.36 shall be changed to "Public Nudity." SECTION 2: Section 9.36.010 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.010 Authority to regulate. The intent and purpose of this chapter is to guarantee that places open to the public in the City of Huntington Beach, including parks, playgrounds, and beaches owned and maintained by the City of Huntington Beach are operated and maintained for the use, benefit, recreation, and enjoyment of all citizens and residents of the City as well as to eliminate, to the greatest extent possible, the secondary effects associated with the presentation of nudity in sex oriented businesses. The City Council finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; the periods of some persons utilizing said places by appearing thereon without clothing and with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling their primary obligation to protect the health, safety, and welfare of the public at large; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct; that the presentation of nude entertainment in sex oriented business results in secondary effects which include the proliferation of prostitution, the increase in sexual assaults, and increase in other crimes; and based upon the foregoing findings, this chapter will protect the public health, safety, and welfare. SECTION 3. Section 9.36.020 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.020 Prohibition related to Parks, Playgrounds, and Beaches. It shall be unlawful for any person to appear, bathe, sunbathe, walk or be on any public park, playground, beach or in the water adjacent thereto, or on any private property open to public view from any public beach, playground, park, public place or public right-of-way in such a manner so as to knowingly and intentionally: oo/ord/mc936-o/5/10/00 1 (a) Expose his or her genitals, vulva, anus, pubic hair, natal cleft, perineum, or cleft of the buttocks; (b) Expose the nipple of either female breast and/or areola except as necessary while engaging in the breast feeding of an infant under the age of two years old; (c) Expose any device, costume or covering which gives the appearance of or simulates the genitals, vulva, anus, pubic hair, natal cleft, perineum, cleft of the buttocks, or nipple and/or areola of the female breast. SECTION 4. Section 9.36.030 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.030 Prohibition related to Place Open to the Public or Open to Public View It shall be unlawful for any person to appear, serve food or drink, perform, walk or be in any place open to the public or open to public view in such a manner so as to knowingly and intentionally: (a) Expose his or her genitals, vulva, anus, pubic hair, natal cleft, perineum, or cleft of the buttocks; (b) Expose the nipple of either female breast and/or areola except as necessary while engaging in the breast feeding of an infant under the age of two years old; (c) Expose any device, costume or covering which gives the appearance of or simulates the genitals, vulva, anus, pubic hair, natal cleft, perineum, cleft of the buttocks, or nipple and/or areola of the female breast. SECTION 5. Section 9.36.040 of the Huntington Beach Municipal Code is hereby deleted in its entirety. SECTION 6. Section 9.36.050 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.050 Persons as accessories. It shall be unlawful to permit, procure, counsel or assist any person to violate any provision of this chapter. SECTION 7. Section 9.36.060 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.060 Exceptions. This chapter does not apply to children under the age of ten years. SECTION 8. Section 9.36.070 is hereby added to the Huntington Beach Municipal Code said section to read as follows: 9.36.070 Violations, Penalties and Enforcement. Any violation of this chapter shall be punishable by: oo/ord/mc936-o/5/10/00 2 (a) Administrative Citation. Upon a finding by the city official vested with the authority to enforce the various provisions of this Chapter that a violation exists, he or she may issue an administrative citation under the provisions of Chapter 1.18 of this Code; (b) Civil Action. The City Attorney, by and at the request of the City Council, may institute an action in any court of competent jurisdiction to restrain, enjoin, or abate the condition(s) found to be in violation of this provisions of this Chapter, as provided by law. SECTION 9. 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 day of , 2000. Mayor ATTEST: APPROVED AS TO FORM: City Clerk /q `�' City Attorney REVIEWED AND APPROVED: INI WED AND APPR V D: City Ad inistrator Police Chief oo/ord/mc936-o/5/10/00 3 ATTACHMENT #2 Ordinance No. 309 LEGISLATIVE DRAFT Chapter 9.36 WEETEXPOSURE OF WAITRESSES RESSESS AND PER-FORMERS-PUBLIC NUDITY Sections: 9.36.010 Authority to regulate Intent and Purpose 9.36.020 The tef de fi oa Prohibition related to Parks, Playgrounds, and Beaches 9.36.030 Bottomless prohibited. Prohibition related to Place Open to the Public or Open to Public View. 9.36.050 Persons as accessories 9.36.060 Exceptions 9.36.070 Violations, Penalties and Enforcement. 9.36.010 Authority to regulate. The or-din nee ead f:oa her-ein is adopted" nt to seetie 318.5 and 318.6 of the Penal Code. All words used in this ehapter-whieh alse are ttsed in seetions, in see-tions 31-8:5 and 318.6 of the Penal Code ('635 3'7" The intent and purpose of this chapter is to guarantee that places open to the public in the City of Huntington Beach, including parks, playgrounds, and beaches owned and maintained by the City of Huntington Beach are operated and maintained for the use, benefit, recreation,and enjoyment of all citizens and residents of the City as well as to eliminate, to the greatest extent possible, the secondary effects associated with the presentation of nudity in sex oriented businesses. The City Council finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; the periods of some persons utilizing said places by appearing thereon without clothing and with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling their primary obligation to legisdrft/mc0936/5/10/00 1 of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct; that the presentation of nude entertainment in sex oriented business results in secondary effects which include the proliferation of prostitution, the increase in sexual assaults, and increase in other crimes; and based upon the foregoing findings, this chapter will protect the public health, safety, and welfare. 9.36.020 Theater de fi . Prohibition related to Parks, Playgrounds, and Beaches. As used in ' * ' ' and in seetions 3 19.5 and 318.6 of the Ppnal Code "theater-" means building, playhouse, room, hall of othef plaee h enent stage upenwhieh Fnevable seenei=y and theatr4eal or-vaudeville or- similar-per-feffflanee. — gi,—, pefmanently affixed seats !that a bedy of speetateFs ean have an tinobstfueted view of the stage, wh full for-ee and eff�et. This definitien does not super-sede the . . . f seetion 9.36.010 of this It shall be unlawful for any person to appear, bathe, sunbathe, walk or be on any public park, playground, beach or in the water adjacent thereto, or on any private property open to public view from any public beach, playground, park, public place or public right-of-way in such a manner so as to knowingly and intentionally: (a) Expose his or her genitals, vulva, anus, pubic hair, natal cleft, perineum, or cleft of the buttocks; (b) Expose the nipple of either female breast and/or areola except as necessary while engaging in the breast feeding of an infant under the age of two years old; (c) Expose any device, costume or covering which gives the appearance of or simulates the genitals, vulva, anus, pubic hair, natal cleft, perineum, cleft of the buttocks, or nipple and/or areola of the female breast. 9.36.030 Bottomless Prohibition related to Place Open to the Public or Open to Public View. Every„anon is guilty of a MISDEMEANOR..,,, , It shall be unlawful for any person to appear, serve food or drink, perform, walk or be in any place open to the public or open to public view in such a manner so as to knowingly and intentionally: legisdrft/mc0936/5/10/00 2 (a) Expose his or her genitals, vulva, anus, pubic hair, natal cleft, perineum, or cleft of the buttocks; (b) Expose the nipple of either female breast and/or areola except as necessary while engaging in the breast feeding of an infant under the age of two years old; (c) Expose any device, costume or covering which gives the appearance of or simulates the genitals, vulva, anus, pubic hair, natal cleft, perineum, cleft of the buttocks, or nipple and/or areola of the female breast. deviee or-eover-ing whieh is intended to simulate the genitals, vulva, antis, pubie hair-or-cleft of the buttocks while paffieipating in any live aet, demonstr-ation or- exhibition in any publie(a) Exposes his or-her-genitals, valva, anus, pubie hair-or- eleft of the butteeks or- empleys an� „lace open to the publie o ,.laee open to publie view, „hiie serving feed r.1ri„ r both to Yiuvv v�via w a.uv Yuviic. •' any ettsten+ef-, lf > > or-to employ aft),sueb Qeyoo (1635 3/71 9.46.040 Topless pr-ehrorc q..-EvefyI female 'J'guilty-ofZ a fMISDEMEANOR, he „hil demenstfation or- exhibition in any publie plaee open to the 7 f r,,,blie „ place open to publie view, n g food .ter r1r,,,L or-botL, to ., ,nt.,mor• �Suviia. or-f,iu o or-while o . (a) Exposes the nipple of eitheF breast and/or-that poAien of either-breast whieh eontigtleusl� either-br- t o n •, (b) Empleys an),deviee whieh is intended to simulate sueh peftions of the breast; o lax ea any t,pe .,� clothing so tl, t ,rt; ,,, of n,,c part of the breast may be obser.,o.a `v f,.vui.� uiiy cyYv yr-�.i (1 6Z�1) 9.36.050 Persons as accessories. Ever„pornon ; guilty f a r,ISDEr,r>~ANO It shall be unlawful to who permits, procure, counsels or assists any person to violate any provision of this chapter. (1635-3/71) 9.36.060 Exceptions. This chapter does „et apply to: (a) A theater-, eeneeft hall or-similar- establishment whieh is primarily deveted to theatr-ioal „ors one (b) et authofized of prohibited by an), state statute-(16T-3/-, shall not apply to children under the age of ten years. legisdrft/mc0936/5/10/00 3 9.36.070 Violations, Penalties and Enforcement. Any violation of this chapter shall be punishable by: (a)Administrative Citation. Upon a finding by the city official vested with the authority to enforce the various provisions of this Chapter that a violation exists, he or she may issue an administrative citation under the provisions of Chapter 1.18 of this Code; (b)Civil Action. The City Attorney, by and at the request of the City Council, may institute an action in any court of competent jurisdiction to restrain, enjoin, or abate the condition(s) found to be in violation of this provisions of this Chapter, as provided by law. legisdrft/mc0936/5/10/00 4 ATTACHMENT #3 ORDINANCE NO. 3 y 10 AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 5.70 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO PENALTY FOR VIOLATION OF REGULATIONS AND REQUIREMENTS OF SEXUAL ORIENTED BUSINESSES The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Section 5.70.010 of the Huntington Beach Municipal Code is hereby amended for clerical consistency only, 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 specifies 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) Owner or Permit holder or Permittee. "Owner", "Permit holder" or "Permittee" means any of the following: (1) the sole proprietor of a Sex Oriented Business; or (2) any and all individuals owning a twenty percent (20%) or greater equitable interest, including any community property interest, in the Sex Oriented Business. 00ord/mc570-o/5/10/00 1 (3) 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. (f) Performer. "Performer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas. (g) 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. (h) 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. (i) 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. (j) 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 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: 00ord/mc570-o/5/10/00 2 (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. (k) 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." (1) 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. 00ord/mc570-o/5/10/00 3 (m) 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. (n) 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. (o) 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 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. (p) 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. (q) 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, 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 00ord/mc570-o/5/10/00 4 (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 areas are exposed. (r) 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. (3) Any device, costume, or covering that simulates any of the body parts included in subdivisions (1) and (2) above. SECTION 2. Section 5.70.240 of the Huntington Beach Municipal Code is hereby amended for content, said section to read as follows: 5.70.140 Violation--Penalty. Any violation of this chapter shall be punishable by: (a) Administrative Citation. Upon a finding by the city official vested with the authority to enforce the various provisions of this Chapter that a violation exists, he or she may issue an administrative citation under the provisions of Chapter 1.18 of this Code; (b) Civil Action. The City Attorney, by and at the request of the City Council, may institute an action in any court of competent jurisdiction to restrain, enjoin, or abate the condition(s) found to be in violation of this provisions of this Chapter, as provided by law. 00ord/mc570-o/5/10/00 5 SECTION 3 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 day of ) 2000. ATTEST: Mayor City Clerk APPROVED AS TO FORM: REVIEWED AND APPROVED: City Attorney 0? INI TED AND AP VED: City Administrator p Police Chief 00ord/mc570-o/5/10/00 6 ATTACHMENT #4 Ordinance No. 3�10 LEGISLATIVE DRAFT Chapter 5.70 SEX ORIENTED BUSINESSES (2523-12/81, Urg. Ord. 3341-10/96, 3431-7/99) Sections: 5.70.05 Purpose 5.70.010 Definitions 5.70.015 Statements And Records 5.70.020 Permit Required 5.70.030 Application For Sex Oriented Business Permit 5.70.035 Sex Oriented Business Permit Issuance 5.70.040 Sex Oriented Performer Permit 5.70.045 Sex Oriented Performers Permit Issuance 5.70.050 Applicant To Appear 5.70.055 Repealed - Ord. 3431 - 7/99 5.70.060 Repealed - Ord. 3431 - 7/99 5.70.065 Repealed - Ord. 3431 - 7/99 5.70.070 Permit Renewal 5.70.080 Permits Nontransferable 5.70.090 Sex Oriented Businesses--Change Of Location Or Name 5.70.095 Sex Oriented Performer--Change Of Location Or Name 5.70.100 Sex Oriented Business Standards Of Operation 5.70.110 Inspections 5.70.115 Revocation of a Sex Oriented Business Permit 5.70.120 Revocation of a Sex Oriented Performer.Permit 5.70.130 Regulations Nonexclusive 5.70.140 Violation--Penalty 5.70.150 Unlawful Operation Declared Nuisance 5.70.160 Minors And Intoxicated Persons 5.70.170 Employment Of Persons Without Permits Unlawful 5.70.180 Severability 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 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 legisdrft/mc570/5/10/00 1 prevent these adverse effects and the blighting or degradation of the neighborhoods in the vicinity of the Sex Oriented Businesses. (Urg. 3341-10/96) 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. (Urg. 3341- 10/96) 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. (Urg. 3341-10/96) 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 specifies anatomical areas. (Urg. 3341-10/96, 3431-7/99) (b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee. (Urg. 3341-10/96) (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). (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (e) Owner or Permit holder or Permittee. "Owner", "Permit holder" or "Permittee" means any of the following: (Urg. 3341-10/96, 3431-7/99) (i)(1) the sole proprietor of a Sex Oriented Business; or (Urg. 3341-10/96, 3431- 7/99) legisdrft/mc570/5/10/00 2 {"-}(2) any and all individuals owning a twenty percent (20%) or greater equitable interest, including any community property interest, in the Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) 44)(3) 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. (Urg. 3341-10/96, 3431-7/99) (f) Performer. "Performer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas. (3431-7/99) (g) 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 ofconduct.(Urg. 3341--10/96, 3431-7/99) (h) 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. (Urg. 3341-10/96, 3431-7/99) (i) 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. (Urg. 3341- 10/96, 3431-7/99) (j) 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 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" legisdrft/mc570/5/10/00 3 shall mean any Sex Oriented Business where one or more of the following conditions exist: (Urg. 3341-10/96, 3431-7/99) (})(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 (Urg. 3341-10/96, 3431- 7/99) (4)(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. (Urg. 3341-10/96, 3431-7/99) (iii)(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. (Urg. 3341-10/96, 3431-7/99) (k) Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel" means a hotel or motel, which (Urg. 3341-10/96, 3431-7/99) (i)(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 (Urg. 3341-10/96, 3431-7/99) (ii)(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." (Urg. 3341-10/96, 3431-7/99) (1) 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 legisdrft/mc570/5/10/00 4 matter depicting, describing, or relating to specified sexual activities or specified anatomical areas. (Urg. 3341-10/96, 3431-7/99) (m) 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. (Urg. 3341-10/96, 3431-7/99) (n) 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. (Urg. 3341-10/96, 3431-7/99) (o) 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 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. (Urg. 3341-10/96, 3431-7/99) (p) 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. (Urg. 3341-10/96, 3431-7/99) (q) Specified sexual activities. "Specified sexual activities" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (2) Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; (Urg. 3341-10/96) legisdrft/mc570/5/10/00 5 (3) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or (Urg. 3341-10/96) (4) Fondling, erotic or sexually touching of human genitals, pubic region, buttocks, cleft of the buttocks,female breast; or anal region. (Urg. 3341-10/96) (5) Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or (Urg. 3341-10/96) (6) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or (Urg. 3341-10/96) (7) Human excretion, urination, menstruation, vaginal or anal irrigation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (r) Specified anatomical areas. "Specified anatomical areas" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96) (2) Human male genitalia in a discernibly turgid state, even if completely and opaquely covered. (Urg. 3341-10/96) (3) Any device, costume, or covering that simulates any of the body parts included in subdivisions (1) and (2) above. (Urg. 3341- 10/96) 5.70.015 Statements and records. Person(s) required to obtain a Sex Oriented Business Permit shall maintain complete records which can be segregated with regard to all transactions involving such products, merchandise, services or entertainment which are sufficient to establish the percentage of gross receipts of the business which is derived from such transactions. (Urg. 3341-10/96, 3431-7/99) Such records shall be maintained for a period of at least three (3) years. (Urg. 3341-10/96) 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. (Urg. 3341-10/96) Iegisdrfdmc570/5/10/00 6 5.70.020 Permit required. (a) No person, association, partnership or corporation shall 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 Permit and a business license-from the City of Huntington Beach. (Urg. 3341-10/96, 3431-7/99) (b) To obtain a permit to own, operate, engage in, conduct or carry on any Sex Oriented Business, the Owner 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 paid to the City to defray, in part, the cost of investigation and report required by this chapter. The receipt, or a copy thereof, shall be supplied to the Chief of Police at the time such application is submitted. (Urg. 3341-10/96, 3431-7/99) (c) The application for Permit.does not authorize the engaging in, operation of, conducting of, or carrying on of any Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (d) Only the Owner of the Sex Oriented Business is eligible to obtain a Sex Oriented Business Permit. (Urg. 3341-10/96, 3431-7/99) (e) The Owner shall post the Permit conspicuously in the Sex Oriented Business Premises. (Urg. 3341-10/96, 3431-7/99) (f) The fact that an Owner has other types of state or City permits or licenses does not exempt the Owner from the requirement of obtaining a Sex Oriented Business Permit. (3431-7/99) 5.70.030 Application for Sex Oriented Business Permit. Each application for a Sex Oriented Business permit shall contain the following information: (Urg. 3341-10/96) (a) Owner Information (Urg. 3341-10/96, 3431-7/99) (1) The full, true name and any other names, including aliases, used by the applicant. (Urg. 3341-10/96) (2) The present business address and telephone number of the applicant. (Urg. 3341-10/96, 3431-7/99) (3) Acceptable written proof that the applicant is at least eighteen (18) years of age. (Urg. 3341-10/96, 3431-7/99) (4) The social security number and state driver's license or identification card of the applicant. (3431-7/99) legisdrft/mc570/5/10/00 7 (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. (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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, and each stockholder holding more than twenty percent (20%) of the stock in the corporation, including community property interests. 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. All individuals owning a twenty percent (20%) or greater equitable interest, including community property interests in the Sex Oriented Business shall complete and sign all application forms required of an individual applicant under this chapter, legisdrft/mc570/5/10/00 8 but only one application fee shall be charged. (Urg. 3341-10/96, 3431- 7/99) (b) Business Information (Urg. 3341-10/96) (1) The name and address of the owner and lessor of the real property upon which the business is to be conducted. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (3) The address to which notice of action on the application is to be mailed. (Urg. 3341-10/96) (4) The name(s) of the responsible person(s) 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). (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.035 Sex Oriented Business Permit Issuance. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) 5.70.040 Sex Oriented Performer Permit (Urg. 3341-10/96, 3431-7/99) (a) No person shall engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities without a valid Sex Oriented Performer Permit issued by the City. (Urg. 3341-10/96, 3431-7/99) Iegisdrfdmc570/5/10/00 9 (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (f) The completed application shall contain the following information and be accompanied by the following documents: (Urg. 3341-10/96, 3431-7/99) (1) The applicant's legal name-and any other names (including "stage names" and aliases) used by the applicant; (Urg. 3341-10/96) (2) The applicant's height, weight, hair and eye color and date and place of birth; (Urg. 3341-10/96, 3431-7/99) (3) Present residence address and telephone number; (Urg. 3341- . 10/96, 3431-7/99) (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, 2661, 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. (Urg. 3341-10/96, 3431-7/99) (5) The social security number and state driver's license or identification number of the applicant. (Urg. 3341-10/96, 3431- 7/99) (6) Acceptable written proof that the applicant is at least eighteen (18) years of age; (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/5/10/00 10 (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; (Urg. 3341-10/96, 3431-7/99) (8) The business address and telephone number where the performance will take place. (3431-7/99) (9) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.045 Sex Oriented Performers Permit Issuance. (Urg. 3341-10/96, 3431-7/99) Within ten (10)business days of receipt of a completed application, as set forth in Section 5.70.040 and payment of the applicable fees, the Chief of Police shall issue a Sex Oriented Performers Permit. However, issuance of the permit does not preclude revocation of the permit pursuant to Section 5.70.120. (Urg. 3341-10/96, 3431-7/99) 5.70.050 Applicant to appear. The applicant for a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (Urg. 3341-10/96, 3431-7/99) 5.70.070 Permit renewal. Each Sex Oriented Business Permit and Sex Oriented Performers Permit shall expire one (1) year from the date of issuance. The applicant shall make application for renewal to the Chief of Police on a form provided by the Chief of Police accompanied by the renewal fee and a copy of the Permit to be renewed. 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. (Urg. 3341- 10/96, 3431-7/99) 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 shall be given, in writing, to the permittee within ten (10) 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 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. (Urg. 3341-10/96, 3431-7/99) The applicant for renewal of a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (3431-7/99) 1egisdrft/mc570/5/10/00 11 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 either any individual who previously owned less than twenty percent (20%) if the corporation or partnership acquires at least twenty percent (20%) 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. (Urg. 3341-10/96, 3431-7/99) 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. (Urg. 3341-10/96) (b) No Sex Oriented Business Performer permit may be sold, transferred or assigned to any other person or persons. (3431-7/99) 5.70.090 Sex Oriented Businesses -- Change of location or name. (Urg. 3341-10/96) (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 city, and approval has been obtained from the Chief of Police. Such approval shall not be given unless all requirements and regulations, as provided herein for applications for permits, have been met. (Urg. 3341-10/96, 3431-7/99) (b) No permit holder shall operate, conduct, manage, engage in, or carry on a Sex Oriented Business under any name other than his name and the name of the business as specified on the applicable permit. (Urg. 3341-10/96, 3431-7/99) (c) Any application for an extension or expansion of a building or other place of business where a Sex Oriented Business is located shall require inspection and shall comply with the provisions and regulations of this Chapter. (Urg. 3341-10/96) 5.70.095 Sex Oriented Performer--Change of location or name. No permit holder shall perform under any name other than the name specified on his or her permit in any other location other than the location specified on his or her permit. (3431-7/99) legisdrft/mc570/5/10/00 12 5.70.100 Sex Oriented Business Standards of Operation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) All indoor-areas of the Sex Oriented Business within which patrons are permitted, except restrooms, shall be open to view at all times. (Urg. 3341-10/96) (3) Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs 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 areas" or "specified sexual activities." (Urg. 3341-10/96, 3431-7/99) (b) General Provisions (Urg. 3341-10/96) (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. (Urg.. . 3341-10/96) (2) No person under the age of 18 years shall be permitted within the premises at any time except as pursuant to California Penal Code Section 313.2. (Urg. 3341-10/96, 3431-7/99) (3) The Sex Oriented Business shall not operate or be open between the hours of 11:00 p.m. and 11:00 a.m. (Urg. 3341-10/96) (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 legisdrft/mc570/5/10/00 13 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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) (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. (Urg. 3341-10/96) legi sdrft/mc570/5/1 0/00 14 (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (d) The following additional regulations shall pertain to Sex Oriented Motion Picture Arcades which provide more than one viewing area: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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 legisdrft/mc570/5/10/00 15 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (U rg. 3341- 10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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: (Urg. 3341-10/96) Iegisdrfdmc570/5/10/00 16 (i) performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (Urg. 3341-10/96, 3431-7/99) (ii) a distance of at least six (6) feet is maintained between any performer and any patron. (Urg. 3341- 10/96, 3431-7/99) (2) The Sex Oriented Business shall provide separate dressing room facilities for performers which are exclusively dedicated to the entertainers' use. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 5.70.110 Inspections. (Urg. 3341-10/96, 3431-7/99) The permit holder shall allow the City of Huntington Beach and its 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. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/5/10/00 17 5.70.115 Revocation of a Sex Oriented Business Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Business Permit when: (Urg. 3341- 10/96, 3431-7/99) (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 (Urg. 3341- 10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (4) The Sex Oriented Business has been operated in violation of any of the requirements of this Chapter and, (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96) (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 legisdrft/mc570/5/10/00 18 the provisions of this Chapter occur(regardless of whether notice of each individual violation is given to Owner) within any twelve (12) month period; or (Urg. 3341-10/96, 3431-7/99) (5) The applicant has made material misrepresentations or fraudulent, false, or misleading statements in the application; or (3431-7/99) (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 (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 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. (3431-7/99) 5.70.120 Revocation of a Sex Oriented Performer Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Performer Permit when: (3431-7/99) (1) The applicant has made material misrepresentations or false or. misleading statements in the application; or (3431-7/99) (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 children, sexual abuse, rape, distribution of obscene material or material harmful to minors, prostitution or pandering, including, but not necessarily legisdrfdmc570/5/10/00 19 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 (3431- 7/99) (3) The Sex Oriented Performer has violated the requirements of this Chapter; \ or (3431-7/99) (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 five (5) years prior to the date of application. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) 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. (Urg. 3341-10/96) 5.70.140 Violation--Penalty. Any violation of this chapter shall be , punishable by: ., fire f five hundred dollars ($500) Of by . . . ent in the eettfityjail for- a period not to exeeed six (6) months, or-by both sueh fine and imprisonment. (a) Administrative Citation. Upon a finding by the city official vested with the authority to enforce the various provisions of this Chapter that a violation exists, he or she may issue an administrative citation under the provisions of Chapter 1.18 of this Code; (b) Civil Action. The City Attorney, by and at the request of the City Council, may institute an action in any court of competent jurisdiction to restrain, enjoin, or abate the condition(s) found to be in violation of this provisions of this Chapter, as provided by law. legisdrft/me570/5/10/00 20 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 havejurisdiction to grant such relief as will abate or remove such Sex Oriented Business and restrain and enjoin any person from operating, conducting or maintaining a Sex Oriented Business contrary to the provisions of this chapter. (Urg. 3341-10/96) 5.70.160 Minors and Intoxicated Persons. (Urg. 3341-10/96) (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 except as pursuant to California Penal Code Section 313.2. A sign giving notice of this provision shall be prominently posted at each entrance to the premises of the Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) (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. (Urg. 3341-10/96) 5.70.170 Employment of Persons Without Permits Unlawful. (a) 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 Performer Permit. (Urg. 3341-10/96, 3431-7/99) (b) The owner, operator, manager or permittee in charge of or in control of the Sex Oriented Business which provides live entertainment shall provide proof of a valid Sex Oriented 1egisdrft/mc570/5/10/00 21 Performer Permit for each individual engaged in live performance upon demand of a police officer. Failure to provide proof is a violation of this chapter. (3431-7/99) 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. (Urg. 3341-10/96) legisdrft/mc570/5/10/00 22 RCA ROUTING SHEET INITIATING CITY ATTORNEY DEPARTMENT: SUBJECT: Establishing Public Nudity Prohibition and Modification of Penalties for violation of Sex Oriented Business Regulations COUNCIL MEETING DATE: June 5, 2000 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attome Not Applicable Subleases, Third Party Agreements, etc. ` (Approved as to form by City Attome Not Applicable Certificates of Insurance Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff �. Assistant City Administrator Initial -City Administrator Initial City Clerk EXPLANATION FOR RETURN OF ITEM: Only)(Below Space For City Clerk's Use Ehring. Liz t From: Kuhnke, Elaine Sent: Monday, May 01, 2000 3:48 PM /6C To: Giguere, Joan (� Cc: Ehring, Liz Subject: deferred city council action The city clerk's office ineeds to confirm if the modification to the adult entertainment regulation is returning to council for action...The original RCA was submitted on May 3, 1999, there has been no followup since then. Jennifer has told me that it would be coming back...who is handling the item now that she is on maternity leave? c- �� A HBCITY OF HUNTINGTON BEACHINTERDEPARTMENTAL COMMUNICATION TO: � / G�-E Department/Division Head(s) D.D FROM: Connie Brockway 99le� - / DATE: /G.LLi..b c,2ef c2 WO SUBJECT: NEED FOR CITY CLERK'S OFFICE TO BE INFORMED AS TO WHETHER DEFERRED CITY COUNCIL/REDEVELOPMENT AGENCY ITEMS WILL EVER RETURN TO COUNCIL As time permits, the City Clerk's Office will be copying RCA's that are in the City Clerk's Office Pending File to ask your department whether the item is to remain pending, deferred or continued, or whether the item will not return to the City Council/Redevelopment Agency. I am sending these inquiries to all departments as some items have more than one department involved. The following is a partial listing of the City Clerk's Office Pending File items: c IF NOT RETURNING TO COUNCIL, please sign, date, and send back form to Liz Ehring, Deputy City Clerk II or call her at x1559 so that we can permanently file the record: Date: CB:le xc: City Council - Informational Only City Administrator - Informational Only Gale\deferred.doc J' CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: Gail Hutton, City Attorney Elaine Kuhnke, Management Assistant FROM: Connie Brockway City Clerk DATE: February 25, 2000 SUBJECT: NEED FOR CITY CLERK'S OFFICE TO BE INFORMED AS TO WHETHER DEFERRED CITY COUNCIL/REDEVELOPMENT AGENCY ITEMS WILL EVER RETURN TO COUNCIL As time permits, the City Clerk's Office will be copying RCA's that are in the City Clerk's Office Pending File to ask your department whether the item is to remain pending or whether the item will not return to the City Council/Redevelopment Agency. The following is a partial listing of the City Clerk's Office Pending File items: NoDtf� WAUT V�-oYoSa W31 Please return this page if your department is involved. I am sending these inquiries to all departments as some items have more than one department involved. CB:cjg cc: City Council - Informational Only City Administrator- Informational Only gIcbmemos/97-038cg _ /YCJ7TUAt/- C R c�kfy�t D,4 4, CITY OF HUNTINGTON BEACH MEETING DATE: 5/3/99 DEPARTMENT ID NUMBER: CA 99- Council/Agency Meeting Held: Deferred/Continued to: ❑ Approve C n�liti ally Approved ❑ /`/Denied {DE,0u ity Clerk's Signature Council Meeting Date: 5/3/99 Department ID Number: CA 99-_ CITY OF HUNTINGTON BEACH REQUEST FOR ACTION SUBMITTED TO: HONORABLE AND MAYOR PETER GREEN AND MEMBERS OF THE CITY COUNCIL SUBMITTED BY: GAIL HUTTON, CITY ATTORNEY ,4�yb�99 PREPARED BY: GAIL HUTTON, CITY ATTORNEY SUBJECT: MODIFY ADULT ENTERTAINMENT REGULATION Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status, Attachment(s) Statement of Issues: 1. Should the City modify the police regulations of Sex Oriented businesses to conform with the recently revised City rezoning of Sex Oriented businesses and a recent Federal Appellate Court decision mandating certain changes in how business permits are processed? 2. Should the City prohibit public nudity, including in all businesses? Funding Source: None. Recommended Action: 1. Adopt Ordinance No. ending Huntington Beach Municipal Code Chapter 5.70 regarding the permit.regulatio r sex oriented businesses and sex oriented performers. =N7;P 0,6 U�IoV I '�'�' 2� Schedule a public hearin tablish a City Fee Schedule r p y for Sex Oriented Bus)nes P 1-0 Adopt Ordinance No. - amending Huntington Beach Municipal Code Chapter 9.36 regarding the prohibition of public nudity SOBRCA e6NrIAIVED Ta 2L0,5tV) 5e-5510A/2_ 04/29/99 4: 4-P TD C'oMSio e�- 1 r jp�.,`�� iT h'ouLQ ��/7�4'¢}T� os �/ REQUEST FOR ACTION MEETING DATE: DEPARTMENT ID NUMBER: CA 99- Alternative Action(s): 1. Do not adopt Ordinance No. and risk increased liability exposure. 2. Do not adopt Ordinance No. 3. Do not schedule the fee hearing. Analysis: I. Amendments to Chapter 5.70 regarding operations of and permits for sex oriented businesses. The case law and legislation related to sex oriented businesses are constantly in flux. In October 1996, in order to respond to judicial decisions finding some of the City's then existing regulations unconstitutional, the City Council adopted new, comprehensive business regulations. The objectives of these regulations included: • requiring persons operating adult businesses and exotic dancers to obtain a police permit. The permit could be denied on certain defined grounds, such as engaging in criminal conduct or violating the operational standards for sex oriented business; and • establishing operating conditions for sex oriented business, such as separating dancers from the patrons, and limiting the locations and images that could be placed on the street signage. Then, after significant research and review of judicial decisions along with numerous public hearings, in January 1998, the City Council rezoned sex oriented businesses from the commercial zone to the industrial zone. The effect of this rezoning was to cluster sex oriented business to the area south of Bolsa and north of McFadden and between Springdale and Graham. Ever since, the City Attorney's Office and the Police Department have been continuously reviewing the most current case law and legislation in an effort to provide the City the most current, constitutionally sound regulations. At this time, we have identified several sections of the business regulations which should be modified to comply with the subsequently adopted zoning standards. For example, the City no longer need require that signage not be visible from major thoroughfares, since in the new zoning district, sex oriented businesses will not front major thoroughfares. Further, after working with the permit regulations, staff has concluded that many of them are unnecessarily cumbersome and could easily be simplified without any loss of effectiveness. Finally, the Ninth Circuit's recent ruling in Baby Tam & Co., Inc. v. City of Las Vegas (9th Cir. 1998) 154 F3d 1097, held that in order for local governments to constitutionally require operating and performer permits for adult businesses, the California state court must provide a form of expeditious, judicial relief for that guarantees the superior court will quickly review SOBRCA -3- 04/26/99 8:50 AM REQUEST FOR ACTION MEETING DATE: DEPARTMENT ID NUMBER: CA 99- any denial of a permit. At this time, the City permit procedures allows the City to deny a permit, and then withhold the permit unless a state court orders the permit issued. However, neither the State Legislature or the Judicial Council have created a judicial procedure that mandates how long a judge has to decide a case involving a permit denial. Consequently, it is necessary that if the City denies a permit, the denial cannot be implemented until a court has actually approved the denial. The City Attorney's Office, in conjunction with other municipal attorneys, is encouraging a change at the state law level; however, until then, the City needs to amend its regulations to make any permit denial only effective after a court has approved it. II. Public Nudity. Recently, this office has received inquiries regarding AB726 (Baugh) and its impact on potential regulation by the City. AB726 specifically codified court cases regarding regulating adult business, reinforcing the City's ability to constitutionally regulate such businesses. It also eliminated a statutory defense previously available to adult businesses, which was not constitutionally required. What it did not address was the ability for the City to prohibit total nudity in juice bars. It did not address the current state law, which prohibits total nudity in establishment, which serve alcohol, but says nothing about "juice" bars. Recently, the Tilly B. case from Newport Beach upheld a .total ban of public nudity. The effect of the Newport Beach ordinance is to prohibit exotic dancers from displaying full frontal nudity, but instead wear pasties and a g-string. Huntington could adopt a similar ordinance, and the proposed amendments to Huntington Beach Municipal Code Chapter 9.36 represent such an ordinance. However, it is likely that such an ordinance would be vigorously litigated and the City could be liable for attorney fees if the City were unsuccessful in its defense of the ordinance. Environmental Status: Not applicable. Attachment(s): City Clerk's . - Number No. Description 1 Ordinance No. amending Huntington Beach Municipal Code 5.70 and 9.36 2 Legislative Draft of H.B.M.C. §5.70 3 Legislative Draft of H.B.M.C. §9.36 4 Resolution No. (Supplemental Fee Resolution No. SOBRCA 4- 04/26/99 8:50 AM ORDINANCE NO. 3 J 2- AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 9.36.010 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO INDECENT EXPOSURE The City Council of the City of Huntington Beach does hereby ordain as follows: SECTION 1. Section 9.36.010 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.010 Intent and Purpose. The intent and purpose of this chapter is to guarantee that places open to the public in the City of Huntington Beach are operated and maintained for the use, benefit, recreation, and enjoyment of all citizens and residents of the City as well as to eliminate, to the greatest extent possible; the secondary effects associated with.the presentation of nudity in sex oriented businesses. The City Council finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; the periods of some persons utilizing said places by appearing thereon without clothing and with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling their primary obligation to protect the health, safety, and welfare of the public at large; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct; that the presentation of nude entertainment in sex oriented business results in secondary effects which include the proliferation of prostitution, the increase in sexual assaults, and increase in other crimes; and based upon the foregoing findings, this chapter will protect the public health, safety, and welfare. SECTION 2. Section 9.36.020 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.020 Exemptions. This chapter shall not apply to children under the age of ten years. SECTION 3. Section 9.36.030 of the Huntington Beach Municipal Code is hereby amended to read as follows: 1 j mp/99ord/mc93 6-o/04/26/99 9.36.030 Bottomless prohibited. Every person is guilty of a MISDEMEANOR who: (a) knowingly or intentionally exposes his or her genitals, vulva, anus, pubic hair or cleft of the buttocks or employs any device or covering which is intended to simulate the genitals, vulva, anus, pubic hair or cleft of the buttocks while participating in any live act, demonstration or exhibition-in any public place, place open to the public or place open to public view, or while serving food or drink or both to any customer; or (b) knowingly or intentionally permits, procures or assists any person to so expose himself or herself, or to employ any such device. SECTION 4. Section 9.36.040 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.040 Topless prohibited. Every female is guilty of a MISDEMEANOR who, while participating in any live act, demonstration or exhibition in any public place, place open to the public or place open to public view, or while serving food or drink or both to any customer: (a) knowingly or intentionally exposes the nipple of either breast and/or that portion of either breast which contiguously surrounds the nipple and which is of a different natural pigmentation than the main portion of either breast; or (b) knowingly or intentionally employs any device or covering which is intended to simulate such portions of the breast; or (c) knowingly or intentionally wears any type of clothing so that any portion of such part of the breast may be observed. SECTION 5. Section 9.36.050 of the Huntington Beach Municipal Code is hereby amended to read as follows: 9.36.050 Persons as accessories. Every person is guilty of a MISDEMEANOR who knowingly or intentionally permits, counsels or assists any person to violate any provision of this chapter. SECTION 6 Section 9.36.060 of the Huntington Beach Municipal Code is hereby deleted in its entirety. 2 j mp/99 ord/mc 93 6-o/04/2 6/99 SECTION 7. 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 day of , 1999. Mayor ATTEST: APPROVED AS TO FORM: City Clerk r p Fes/ City Attorney /,T� REVIEWED AND APPROVED: `' 1NIT TED AND APPROVED: 6p,etn �, City ATministrator Ln Planning Director 3 jmp/99ord/mc936-o/04/26/99 Ordinance No. 3�3� LEGISLATIVE DRAFT Chapter 9.36 INDECENT EXPOSURE OF WAITRESSES AND PER-FO ME Sections: 9.36.010 Intent and Purpose 9.36.020 Theater ae fi Exemptions 9.36.030 Bottomless prohibited 9.36.040 Topless prohibited 9.36.050 Persons as accessories 9.36.010 Aut W*.,to,.eg* *o Intent and Purpose. The intent and purpose of this chapter is to guarantee that places open to the public in the City of Huntington Beach are operated and maintained for the use, benefit, recreation, and enjoyment of all citizens and residents of the City as well as to eliminate, to the greatest extent possible, the secondary effects associated with the presentation of nudity in sex oriented businesses. The City Council finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; the periods of some persons utilizing said places by appearing thereon without clothing and with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling their primary obligation to protect the health, safety, and welfare of the public at large; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct; that the presentation of nude entertainment in sex oriented business results in secondary effects which include the proliferation of prostitution, the increase in sexual assaults, and increase in other crimes; and based upon the foregoing findings, this chapter will protect the public health, safety, and welfare. „ant to seetions 318.5 and- 318.6 of the Penal Code. Allwer-ds used in this ehapter-whieh also are used in seetions 318.5 and 318.6 are used in the same sease and mean the same as the same r-espeetive word used in seetions 3 19. 318.E of the Penal (1635 3,/4) 1 Legdrft/mc093 6/04/26/99 9.36.020 Theater- defined Exemptions. This chapter shall not apply to children under the age of ten years. As used in this ehapto,.and in sections 318.5 and 318.6 of the mppBa, Code "thta.Atkaw" means a building, playhouse, room, hall E)r-other-plaee having a pefmanefit stage upenwhieh seats se affanged that a bedy ef speetater-s ean have an tinebstfueted view of the stage, whose' i (1 635/a, 9.36.030 Bottomless prohibited. Every person is guilty of a MISDEMEANOR who: (a) knowingly or intentionally Eexposes his or her genitals, vulva, anus, pubic hair or cleft of the buttocks or employs any device or covering which is intended to simulate the genitals, vulva, anus, pubic-hair or cleft of the buttocks while participating in any live act, demonstration or exhibition-in any public place, place open to the public or place open to public view, or while serving food or drink or both to any customer; or (b) knowingly or intentionally Ppermits, procures or assists any person to so expose himself or herself, or to employ any such device. 9.36.040 Topless prohibited. Every-female is guilty of a MISDEMEANOR who, while participating in any live act, demonstration or exhibition in any public place,place open to the public or place open to .public view, or while serving.food.or-drink or both to,any customer: (a) knowingly or intentionallyEexposes:the nipple of either breast and/or that portion of either breast which contiguously surrounds the nipple,and which is of.a different natural pigmentation than the main portion of either breast; or (b) knowingly or intentionally Eemploys any device or covering which is intended to simulate such portions of the breast; or (c) knowingly or intentionally Wwears any type of clothing so that any portion of such part of the breast may be observed. 9.36.050 Persons as accessories. Every person is guilty of a MISDEMEANOR who knowingly or intentionally permits, counsels or assists any person to violate any provision of this chapter. 9.36.060 This ehapter-does not apply to-. (a) A theater-, eeneer-t hall or- similar-establishment whieh is pr-imafily devoted to theatr4eal per-f� (b) Any-aet atithe izede prohibited by any Jt-ate statute (1635 3 A-741 2 Legdrft/mc0936/04/26/99 I PROOF OF PUBLICATION STATE OF CALIFORNIA) ) SS. County of Orange ) I am a Citizen of the United States and a NOTICE OF PUBLIC HEARING resident of the County aforesaid; I am CITY OF HUNTINGTON BEACH over the age of eighteen years, and not a ESTABLISHMENT OF ADULT party to or interested in the below ENTERTAINMENT entitled matter. I am a principal clerk of PERMIT FEE NOTICE IS HEREBY PIVEhear- the HUNTINGTON BEACH INDEPENDENT, a ng will be held that apic bylthe City Council of the Civic Center, newspa er of general circulation, printed 2000 Main Street, Hunt- ington Beach, CA, at the and pu lished in the City of Huntington hour of real p.m., possi- ble, as soon thereafter as possi- Beach, County of Orange State of day on Monday, the the � day'of June, 1999, for the California, and that attached Notice is aesoutonfor hesestablsh- t.rue and complete copy as was printed mentofrmitfe an tEntertain- ment Permit fee. It is proposed that a new and published in the Huntington Beach fee be required. The City permits will be reviewed and Fountain Valley issues of said and issued by the Police Department. Significant, newspaper to wit the issue(s) of: staff time expended inI the administration of the permits as well as enforce- ment of the operational re- strictions. All citizens are invited to attend the public hearing and provide the City_Coun- cil with written and oral May 20, 1999 comments and ask ques- tions concerning the i proposal revisions to the I Huntington Beach'Munici- pal Code', and/or fee schedule. Written com- municationsI declare, under penalty of perjury, that Council y the City Council may also- be mailed to the City Clerk. the foregoing is true and correct. The/City Huntington Beach endeavors to ac corrmodate persons of handicapped status in the admission or access to,or treatment or employment Executed On Mav 20, 199 2_ in, City programs or .activities.The City of Hunt- at Costa Mesa, California. ington Beach is an equal opportunity employer. DATED:May 7, 1999 City of Huntington Beach by:Connie Brockway City Clerk 2000 Main Street Huntington Beach,CA 92648,(714)536-5227 Published Huntington Beach-Fountain Valley In- dependent May May 20,1999 053-929 Signature PROOF OF PUBLICATION STATE OF CALIFORNIA) ) SS. County of Orange ) am a Citizen of the United States and a NOTICE OF resident of the County aforesaid; I am PUBCTYOF ING HUNTINGTON BEACH over the age of eighteen years, and not a ESTABLISHMENT OF party to or interested in the below ENTERTAINMENT i entitled matter. I am a principal clerk of PERMIT FEE NOTICE IS HEREBY. I hear- the HUNTINGTON BEACH INDEPENDENT, a ing will be held that apic bylthe City newspa er of general circulation, printed Council of the Civic Center, p �2000 Main Street, Hunt- ! and published in the City of Huntington hour Beach, CA, at the hour of 7:00 p.m., or as i soon thereafter as possi- Beach, County of Orange State of ble, on'Monday, the 7tn day of June, 1999, for the California, and that attached Notice is a purpose of considering a resolution for the establish- true and complete copy as was printed mentofa ment Permit fee.t fee.dult Entertain and publishedill the It is proposed that a new Huntington Beach fee be required. The City permits will be reviewed and Fountain Valley issues of said and issued by the'Police Department. Significant newspaper to wit the issue(s) of: staff time is expended in the administration of the permits as well as enforce- ment of the operational re- strictions. All citizens are invited to attend the public hearing and provide the City Coun- cil with written and oral May 20, 1999 comments and ask ques- tions concerning the proposal revisions to the Huntington Beach Munici- pal Code, and/or fee schedule. Written com- munications Jo the City declare, under penalty of perjury, that Council may also W the foregoing is true and correct. mailed to the City Clerk The City . Huntington Beach endeavors to ac' commodate persons of i handicapped status in the .admission or access to, or Executed on treatment or,employment Ma V 20, 199 9 in, City programs or activities.The City of Hunt- at Costa Mesa, California. _ ington Beach is an equal opportunity employer. DATED:May 7, 1999 City of Huntington Beach by:Connie Brockway City Clerk 2000 Main Street Huntington Beach,CA 92648,(714)536-5227 Published Huntington Beach-Fountain Valley In- dependent May 20,1999 Signature _ 053-929 1 Page 22 - Council/Agency Minutes —05/03/99 CONTINUED INTRODUCTION OF ORDINANCE NO. 3432—TO AMEND HUNTINGTON BEACH MUNICIPAL CODE RELATING TO INDECENT EXPOSURE (640.10) The City Council considered proposed Ordinance No. 3432 - "An Ordinance of the City of Huntington Beach Amending Chapter 9.36.010 of the Huntington Beach Municipal Code Relating to Indecent Exposure." Following discussion a motion was made Garofalo, second Julien to continue consideration of Ordinance No. 3432 to be considered in closed session as it would relate to a closed session item on May 24, 1999. The motion carried unanimously. (CITY COUNCIL) REQUEST GUIDELINES SETTING FORTH GOALS AND OBJECTIVES FOR THE ECONOMIC DEVELOPMENT COMMITTEE -APPROVED (460.35) The City Council considered a communication from Councilmember Harman regarding scope and purpose of the Economic Development Committee. Councilmember Harman presented reasons why he had placed this item on the agenda, citing some of the types of agreements which had gone through the Economic Development Committee which he believes should have first gone through the City Council. He stated the example of the bus bench/bus shelter contract which was very contentious. He spoke regarding the 31 acres of property on Pacific Coast Highway and Lake Street where he had heard that perhaps 20 or 30 story condominiums are proposed. He stated that a developer could believe only one more vote is needed for approval at the Council level due to the discussion at the Economic Development Committee level. He stated that perhaps it may be determined that the Economic Development Committee is not necessary. Councilmember Harman commented on the great amounntf staff time involved with this committee. A motion was made by Harman, second Sullivan, to direct staff to return to the City Council within 30 days with a set of proposed guidelines setting forth the goals and objectives of the Economic Development Committee and a recommendation of the type of issues that should be submitted to the Economic Development Committee for their consideration. Mayor Pro Tern Garofalo commented on the matter. City Administrator Silver presented background information on the Economic Development Committee stating that he believes that the Economic Development Committee could be more defined. Councilmember Dettloff informed Council that she believes the Economic Development Committee is a valuable committee. She stated she will be supporting-the motion and she does not believe contracts should be presented to that committee. The motion made by Harman, second Sullivan, carried unanimously. CITY POLICY TO BE REVIEWED REGARDING PROLIFERATION OF PLASTIC CONTAINERS ON CURBS (120.90) Mayor Pro Tem Garofalo requested the City Administrator to review the city's policy regarding containers on curbs as he has observed a proliferation of plastic containers on curbs which contains give-aways related to job announcements and other materials. RECEIVED FROM AT AND MADE A FART OF TH - '0 D ATTHE COUNCIL MEETING OF OFFICE OF THE CI Y CLERK CONNIE BROCKWAY,CITY CLERK CITY OF HUNTINGTON BEACH Inter-Department Communication TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS FROM: GAIL HUTTON, City Attorney DATE: July 5, 2000 SUBJECT: Late Submittal AGENDA ITEM G-2a: Establishing Public Nudity Prohibition and Modification of Penalties and Findings for Violation of Sex Oriented Business Regulations Please replace the ordinance revising Chapter 5.70 found in Agenda Item G-2a with the attached, revised Sex Oriented Business Ordinance and Legislative Draft. The RCA on this item explained that the City Attorney recommended amendment of Huntington Beach Municipal Code Chapter 5.70 regulating Sex Oriented Business to delete the requirements that shareholders of a corporate applicant complete the Sex Oriented Business application. Unfortunately, the previous version of the ordinance submitted in the packet did not delete this requirement in all the places it appeared. The attached revision corrects this oversight. Thank you. GAIL HUTTON, City Attorney /k 9 � ORDINANCE NO. AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 5.70 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO PENALTY FOR VIOLATION OF REGULATIONS AND FINDINGS IN SUPPORT OF CHAPTER 5.70 The City Council 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. In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. Nudity in the public park has resulted in numerous arrests for violations of the California Penal Code related to public fornication and lewd acts. These crimes have occurred after public exposure of gentialia and in areas open to the general public. Citizen complaints have been received by the Police Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity. 00ord/mc570-o/7/5/00 1 r 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 businesses and nudity in public 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 public nudity and 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 public nudity and 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 1 (1998); City of National City v. Wiener, 3 CalAth 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 (1 lth 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.). The City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity did not result in majority opinions. (City of 00ord/mc570-o/7/5/00 2 1 y 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).) 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 finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; persons utilizing said places by appearing thereon without clothing and/or with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling other public health, safety and welfare obligations; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct. The City Council recognizes the possible harmful effects on children and minors exposed to public nudity and to the effects of sex-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.) 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.AppAth 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 public nudity and 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 takes legislative notice of the facts recited in the case 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 result in secondary effects such as prostitution, drug dealing, and other law enforcement problems. 00ord/mc570-o/7/5/00 3 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), cent. 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. 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 ofdacksonville, 973 F. Supp. 1428 (M.D. Fla. 1997) and Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F. 3d 1358 (1 It' Cir. 1999); and City of Colorado Springs v. 2354Inc., 896 P.2d 272 (1995). SECTION 2. Section 5.70.010 of the Huntington Beach Municipal Code is hereby amended to read as follows: 00ord/mc570-o/7/5/00 4 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 specifies anatomical areas. (b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee. (c) Distinguished or characterized b_ an n 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) Owner or Permit holder or Permittee. "Owner", "Permit holder" or "Permittee" means any of 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. For purposes of this Chapter, "corporation" shall also include not for profit corporations and limited liability corporations. (f) Performer. "Performer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas. (g) 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 00ord/mc570-o/7/5/00 5 hundred and eighty(180) day period, shall to the extent permitted by law be deemed to be a regular and substantial course of conduct. (h) 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. (1) 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. (j) 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 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 00ord/mc570-o/7/5/00 6 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. (k) 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." (1) 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. (m) 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. (n) 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. 00ord/mc570-o/7/5/00 7 (o) 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 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. (p) 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. (q) 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, 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. 00ord/mc570-o/7/5/00 8 (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. (r) 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. (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. (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. 00ord/mc570-o/7/5/00 9 (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. (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. 00ord/mc570-o/7/5/00 10 (3) The address to which notice of action on the application is to be mailed. (4) The name(s) of the responsible person(s) 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. (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. SECTION 4. Section 5.70.080 of the Huntington Beach Municipal Code is hereby 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 5. Section 5.70.100 of the Huntington Beach Municipal Code is hereby amended to read as follows: 00ord/mc570-o/7/5/00 1 1 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 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 areas" or "specified sexual activities." (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 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 00ord/mc570-o/7/5/00 12 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 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. 00ord/mc570-o/7/5/00 13 (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 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 00ord/mc570-o/7/5/00 14 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. (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 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 00ord/mc570-o/7/5/00 15 revealing or depicting Specified Anatomical Parts for patrons of a Sex Oriented Business except where: (1) performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (ii) 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 6. 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; (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 00ord/mc570-o/7/5/00 16 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 owner, manager, or person with managerial or supervisory control, 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 7. Section 5.70.150 of the Huntington Beach Municipal Code is hereby amended for content 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 8. 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 day of 52000. ATTEST: Mayor City Clerk APPROVED AS TO FORM: REVIEWED AND APPROVED: City Attorney INITIATED AND APPROVED: City Administrator Police Chief 00ord/mc570-o/7/5/00 17 Ordinance No. LEGISLATIVE DRAFT Chapter 5.70 Findings 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. In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. Nudity in the public park has resulted in numerous arrests for violations of the California Penal Code related to public fornication and lewd acts. These crimes have occurred after legisdrfV=570/7/5%00/3:18 PM 1 public exposure of gentialia and in areas open to the general public. Citizen complaints have been received by the Police Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity. 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 and nudity in public 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 public nudity and 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 public nudity and sex-oriented businesses, including but not limited to: City of Erie v. Pap Is A.M. ("Kandyland'q, 120 S.Ct. 1382 (2000); Barnes v. Glenn Theater, 501 U.S. 560, 111 S.Ct. 24569 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), cent. denied 511 U.S. 1030 (1994); Key, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d.545 1egisdrfVmc570/7/5/00/3:18 PM 2 (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 1 (1998); City of National City v. Wiener, 3 CalAth 832 (1993), cert. denied 510 U.S. 824; People v. Superior Court_(Lucero) 49 Ca1.3d 14 (1989); and City of Vallejo v. Adult Books, 167 Ca1.App.3d 1169 (1985), cent. 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 (llth Cir. 1991), cert. 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.). The City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity 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. 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 Ca1.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 finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; persons utilizing said places by appearing thereon without clothing and/or with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public . safety personnel who are diverted from fulfilling other public health, safety and welfare obligations; that the presence of persons who are unclothed and 1egisdrfVmc570/7/5/00/3:18 PM 3 exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct. The City Council recognizes the possible harmful effects on children and minors exposed to public nudity and to the effects of sex-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.) 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.AppAth 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 public nudity and 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 takes legislative notice of the facts recited in the case of Key, 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 result in secondary effects such as prostitution, drug dealing, and other law enforcement problems. 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. 8449117 S.Ct. 23299138 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 3259 329 (4th Cir. 1996), cent. 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 1egisdrft/mc570/7/5/00/3:18 PM 4 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), cent. 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. 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 (111h Cir. 1999); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995). 1egisdrft/mc570/7/5/00/3:18 PM 5 Y Chapter 5.70 SEX ORIENTED BUSINESSES (2523-12/81, Urg. Ord. 3341-10/96, 3431-7/99) Sections: 5.70.05 Purpose 5.70.010 Definitions 5.70.015 Statements And Records 5.70.020 Permit Required 5.70.030 Application For Sex Oriented Business Permit 5.70.035 Sex Oriented Business Permit Issuance 5.70.040 Sex Oriented Performer Permit 5.70.045 Sex Oriented Performers Permit Issuance 5.70.050 Applicant To Appear 5.70.055 Repealed - Ord. 3431 - 7/99 5.70.060 Repealed- Ord. 3431 - 7/99 5.70.065 Repealed - Ord. 3431 - 7/99 5.70.070 Permit Renewal 5.70.080 Permits Nontransferable 5.70.090 Sex Oriented Businesses--Change Of Location Or Name 5.70.095 Sex Oriented Performer--Change Of Location Or Name 5.70.100 Sex Oriented Business Standards Of Operation 5.70.110 Inspections 5.70.115 Revocation of a Sex Oriented Business Permit 5.70.120 Revocation of a Sex Oriented Performer Permit 5.70.130 Regulations Nonexclusive 5.70.140 Violation--Penalty 5.70.150 Unlawful Operation Declared Nuisance 5.70.160 Minors And Intoxicated Persons 5.70.170 Employment Of Persons Without Permits Unlawful 5.70.180 Severability 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.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. (Urg. 3341-10/96) IegisdrfVmc570n/5/00/3:18 PM 6 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. (Urg. 3341- 10/96) 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. (Urg. 3341-10/96) 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 specifies anatomical areas. (Urg. 3341-10/96, 3431-7/99) (b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee. (Urg. 3341-10/96) (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). (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (e) Owner or Permit holder or Permittee. "Owner", "Permit holder" or "Permittee" means any of the following: (Urg. 3341-10/96, 3431-7/99) (0(1) the sole proprietor of a Sex Oriented Business; of (Urg. 3341-10/96, 3431- 7/99) R(2) any and all individualseA%ingn twenty pernenti(20%) nte, or-gaiuw. e .itab a interest .+lu ing any niter pr-eperty interest in the Sex nre„tea Business. (Urg. 3341-10/96, 3431-7/99) the lee sdrft/mc57on/5/00/3:25 PM 7 partnership owning a Sex Oriented Business, and each of the partners; or (iii)(3) the per-son designated by the offieer-s of a eer-per-ation te be the Peffflit seFPef . the corporation owning a Sex Oriented Business and each of its officers and directors. For purposes of this Chapter, "corporation" shall also include not-for-profit corporations and limited liability corporations. (Urg. 3341-10/96, 3431-7/99) (f) Performer. "Performer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas. (3431-7/99) (g) 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.(Urg. 3341-10/96, 3431-7/99) (h) 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. (Urg. 3341-10/96, 3431-7/99) (i) 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. (Urg. 3341- 10/96, 3431-7/99) (j) 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 legisdrft/mc570/7/5/00/3:18 PM 8 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 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: (Urg. 3341-10/96, 3431-7/99) (i)(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 (Urg. 3341-10/96, 3431- 7/99) (4i)(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. (Urg. 3341-10/96, 3431-7/99) (iii)(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. (Urg. 3341-10/96, 3431-7/99) (k) Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel" means a hotel or motel, which (Urg. 3341-10/96, 3431-7/99) 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 (Urg. 3341-10/96, 3431-7/99) R(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." (Urg. 3341-10/96, 3431-7/99) IegisdrfVmc570/7/5/00/3:18 PM 9 (1) 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. (Urg. 3341-10/96, 3431-7/99) (m) 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. (Urg. 3341-10/96, 3431-7/99) (n) 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. (Urg. 3341-10/96, 3431-7/99) (o) 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 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. (Urg. 3341-10/96, 3431-7/99) (p) 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. (Urg. 3341-10/96, 3431-7/99) (q) Specified sexual activities. "Specified sexual activities" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) IegisdrtVmc570/7/5/00/3:18 PM 10 (2) Clearly depicted human genitals in a state of sexual stimulation; arousal or tumescence; (Urg. 3341-10/96) (3) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or (Urg. 3341-10/96) (4) Fondling, erotic or sexually touching of human genitals,pubic region, buttocks, cleft of the buttocks, female breast; or anal region. (Urg. 3341-10/96) (5) Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or (Urg. 3341-10/96) (6) Erotic or lewd touching, fondling or_other sexually oriented contact with an animal by a human being; or (Urg. 3341-10/96) (7) Human excretion, urination, menstruation, vaginal or anal irrigation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (r) Specified anatomical areas. "Specified anatomical areas" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96) (2) Human male genitalia in a discernibly turgid state, even if completely and opaquely covered. (Urg. 3341-10/96) (3) Any device, costume, or covering that simulates any of the body parts included in subdivisions (1) and (2) above. (Urg. 3341- 10/96) 5.70.015 Statements and records. Person(s) required to obtain a Sex Oriented Business Permit shall maintain complete records which can be segregated with regard to all transactions involving such products, merchandise, services or entertainment which are sufficient to establish the percentage of gross receipts of the business which is derived from such transactions. (Urg. 3341-10/96, 3431-7/99) Such records shall be maintained for a period of at least three (3) years. (Urg. 3341-10/96) legisdrW=570n/5/00/118 PM 11 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. (Urg. 3341-10/96) 5.70.020 Permit required. (a) No person, association, partnership or corporation shall 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 Permit and a business license from the City of Huntington Beach. (Urg. 3341-10/96, 3431-7/99) (b) To obtain a permit to own, operate, engage in, conduct or carry on any Sex Oriented Business, the Owner 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 paid to the City to defray, in part, the cost of investigation and report required by this chapter. The receipt, or a copy thereof, shall be supplied to the Chief of Police at the time such application is submitted. (Urg. 3341-10/96, 3431-7/99) (c) The application for Permit does not authorize the engaging in, operation of, conducting of, or carrying on of any Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (d) Only the Owner of the Sex Oriented Business is eligible to obtain a Sex Oriented Business Permit. (Urg. 3341-10/96, 3431-7/99) (e) The Owner shall post the Permit conspicuously in the Sex Oriented Business Premises. (Urg. 3341-10/96, 3431-7/99) (f) The fact that an Owner has other types of state or City permits or licenses does not exempt the Owner from the requirement of obtaining a Sex Oriented Business Permit. (3431-7/99) 5.70.030 Application for Sex Oriented Business Permit. Each application for a Sex Oriented Business permit shall contain the following information: (Urg. 3341-10/96) (a) Owner Information (Urg. 3341-10/96, 3431-7/99) (1) The full, true name and any other names, including aliases, used by the applicant. (Urg. 3341-10/96) (2) The present business address and telephone number of the applicant. (Urg.. 3341-10/96, 3431-7/99) (3) Acceptable written proof that the applicant is at least eighteen(18) years of age. (Urg. 3341-10/96, 3431-7/99) 1egisdrft/mc570/7/5/00/3:18 PM 12 (4) The social security number and state driver's license or identification card of the applicant. (3431-7/99) (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. (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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, 2661, 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. (Urg. 3341-10/96, 3431- 7/99) (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, and eaeh r-e th,., twenty o en, ng _ stee pr-epefty interests. 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. All individuals ^ g a twenty pere + IegisdrtVmc570n/5/00/3:18 PM 13 applieatien fefms required of an individual applieant under-this ehapter-, but only o ..,;,.atie., fee shall be chargge (Urg. 3341-10/96, 3431- 7/99) (b) Business Information (Urg. 3341-10/96) (1) The name and address of the owner and lessor of the real property upon which the business is to be conducted. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (3) The address to which notice of action on the application is to be mailed. (Urg. 3341-10/96) (4) The name(s) of the responsible person(s) 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). (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.035 Sex Oriented Business Permit Issuance. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) 5.70.040 Sex Oriented Performer Permit (Urg. 3341-10/96, 3431-7/99) le;sdrfVmc57on/5/00/3:18 PM 14 (a) No person shall engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities without a valid Sex Oriented Performer Permit issued by the City. (Urg. 3341-10/96, 3431-7/99) (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (f) The completed application shall contain the following information and be accompanied by the following documents: (Urg. 3341-10/96, 3431-7/99) (1) The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant; (Urg. 3341-10/96) (2) The applicant's height, weight, hair and eye color and date and place of birth; (Urg. 3341-10/96, 3431-7/99) (3) Present residence address and telephone number; (Urg. 3341- 10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) IegisdrfVmc570/7/5/00/3:18 PM 15 (5) The social security number and state driver's license or identification number of the applicant. (Urg. 3341-10/96, 3431- 7/99) (6) Acceptable written proof that the applicant is at least eighteen (18) years of age; (Urg. 3341-10/96, 3431-7/99) (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; (Urg. 3341-10/96, 3431-7/99) (8) The business address and telephone number where the performance will take place. (3431-7/99) (9) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.045 Sex Oriented Performers Permit Issuance. (Urg. 3341-10/96, 3431-7/99) Within ten (10)business days of receipt of a completed application, as set forth in Section 5.70.040 and payment of the applicable fees, the Chief of Police shall issue a Sex Oriented Performers Permit. However, issuance of the permit does not preclude revocation of the permit pursuant to Section 5.70.120. (Urg. 3341-10/96, 3431-7/99) 5.70.050 Applicant to appear. The applicant for a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (Urg. 3341-10/96, 3431-7/99) 5.70.070 Permit renewal. Each Sex Oriented Business Permit and Sex Oriented Performers Permit shall expire one (1) year from the date of issuance. The applicant shall make application for renewal to the Chief of Police on a form provided by the Chief of Police accompanied by the renewal fee and a copy of the Permit to be renewed. 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. (Urg. 3341- 10/96, 3431-7/99) 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 shall be given, in writing, to the permittee within ten (10)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 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. (Urg. 3341-10/96, 3431-7/99) Iegisdrft1=570M510013:18 PM 16 The applicant for renewal of a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (3431-7/99) 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. eithe any individual,i he pr-evsl ewned ion than twenty p nt (20%) ;r.t,e cefperatien aFt„ sh at least t.. „t- .eent_(200) outstanding♦nndi steek elf 11 � 11 //�� 11 11 ^ TJICLSllllll� ...�v v.. va �„ ati el *Y s fe f e DA after-the issu o n it v atl va uw.v.. .v �v.u, awa�a�.a�u va assigned v�r-. ���- �....����-- -- �r�______, __ any st&& authe;.4zed but not issued at the tifne of the S issued and sold, *r-nrsf ffe or- assigned. (Urg. 3341-10/96, 3431-7/99) 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. (Urg. 3341-10/96) (b) No Sex Oriented Business Performer permit may be sold, transferred or assigned to any other person or persons. (3431-7/99) 5.70.090 Sex Oriented Businesses -- Change of location or name. (Urg. 3341-10/96) (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 city, and approval has been obtained from the Chief of Police. Such approval shall not be given unless all requirements and regulations, as provided herein for applications for permits, have been met. (Urg. 3341-10/96, 3431-7/99) (b) No permit holder shall operate, conduct, manage, engage in, or carry on a Sex Oriented Business under any name other than his name and the name of the business as specified on the applicable permit. (Urg. 3341-10/96, 3431-7/99) leo sdrft/mc57on/5/00/3:18 PM 17 (c) Any application for an extension or expansion of a building or other place of business where a Sex Oriented Business is located shall require inspection and shall comply with the provisions and regulations of this Chapter. (Urg. 3341-10/96) 5.70.095 Sex Oriented Performer--Change of location or name. No permit holder shall perform under any name other than the name specified on his or her permit in any other location other than the location specified on his or her permit. (3431-7/99) 5.70.100 Sex Oriented Business Standards of Operation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) All indoor areas of the Sex Oriented Business within which patrons are permitted, except restrooms, shall be open to view at all times. (Urg. 3341-10/96) (3) Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs 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 areas" or "specified sexual activities." (Urg. 3341-10/96, 3431-7/99) (b) General Provisions (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) No person under the age of 18 years shall be permitted within the premises at any time except as pursuant to California Penal Code Section 313.2. (Urg. 3341-10/96, 3431-7/99) (3) The Sex Oriented Business shall not operate or be open between the hours of 1 I p.m. 2:00 a.m. and 11:00 a.m. (Urg. 3341-10/96) Iegisdrft/mc570n/5/00/3:18 PM 18 (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341- 10/96) legisdrfdmc570n/5/00/3:18 PM 19 (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) w = (d) The following additional regulations shall pertain to Sex Oriented Motion Picture Arcades which provide more than one viewing area: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) legisdr@/mc570/7/5/00/3:18 PM 20 (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. (Urg. 3341- 10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/9.9) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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. (Urg. 3341-10/96, 3431-7/99) IegisdrW=57on/5/00/3:18 PM 21 (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: (Urg. 3341-10/96) (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: (Urg. 3341-10/96) (i) performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (Urg. 3341-10/96, 3431-7/99) (ii) a distance of at least six (6) feet is maintained between any performer and any patron. (Urg. 3341- 10/96, 3431-7/99) (2) The Sex Oriented Business shall provide separate dressing room facilities for performers which are exclusively dedicated to the entertainers' use. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 5.70.110 Inspections. (Urg. 3341-10/96, 3431-7/99) The permit holder shall allow the City of Huntington Beach and its 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 Iegisdrfi/mc570n/5/00/3:18 PM 22 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. (Urg. 3341-10/96, 3431-7/99) 5.70.115 Revocation of a Sex Oriented Business Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Business Permit when: (Urg. 3341 10/96, 3431-7/99) (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 (Urg. 3341- 10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (4) The Sex Oriented Business has been operated in violation of any of the requirements of this Chapter and, (Urg. 3341-10/96, 3431-7/99) (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 Iegisdrfdmc57on/5/00/3:18 PM 23 written notice of such violation is mailed or delivered to the Owner, or (Urg. 3341-10/96) (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; or (Urg. 3341-10/96, 3431-7/99) (5) The applicant has made material misrepresentations or fraudulent, false, or misleading statements in the application; or (3431-7/99) (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(3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 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. (3431-7/99) 5.70.120 Revocation of a Sex Oriented Performer Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Performer Permit when: (3431-7/99) IegisdrtVmc570n/5/00/3:18 PM 24 (1) The applicant has made material misrepresentations or false or misleading statements in the application; or (3431-7/99) (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 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 (3431- 7/99) (3) The Sex Oriented Performer has violated the requirements of this Chapter; or (3431-7/99) (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 five (5) years prior to the date of application. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) 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. (Urg. 3341-10/96) 5.70.140 Violation--Penalty. Any violation of this chapter shall be , punishable by: ., fine of five >1. ndr-ed d lla ($500) or-b ment in the eeuntyjail for-a period not to exeeed six (6) Fneaths, or by both ateh fine and impfisemnent. (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; IegisdrB/mc57on/5/00/3:18 PM 25 (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 owner, manager, or person with managerial or - supervisory control, 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. 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 ^ReEne •may, in addition to in lie of b , eemmenee an ae4ien or- , b eT pfeeeedings abatement, > in the manner-pr-evided by law. He shall take sueh ether- steps and shall apply to stieh eeuFt or-ea'afts as fna),have jur-isdietien to gFant stieh relief aswill abate or-r-emeve sueh Sex Ofiented Business and restrain and enjoin an) per-son ff eenduetiall ef maintaining a Sex Oriented Business eentr-afy te the b� b p e€�ri�-crap 5.70.160 Minors and Intoxicated Persons. (Urg. 3341-10/96) (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 except as pursuant to California Penal Code Section 313.2. A sign giving notice of this provision shall be prominently posted at each entrance to the premises of the Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (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. (Urg. 3341-. 10/96) (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. (Urg. 3341-10/96) IegisdrfVmc570/7/5/00/3:18 PM 26 5.70.170 Employment of Persons Without Permits Unlawful. (a) 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 Performer Permit. (Urg. 3341-10/96, 3431-7/99) (b) The owner, operator, manager or permittee in charge of or in control of the Sex Oriented Business which provides live entertainment shall provide proof of a valid Sex Oriented Performer Permit for each individual engaged in live performance upon demand of a police officer. Failure to provide proof is a violation of this chapter. (3431-7/99) 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. (Urg. 3341-10/96) 1egisdrft/mc570/7/5/00/3:18 PM 27 Ve(rome to THE CITY OF HUNTINGTON BEACH g t. A portion of the document you are viewing contains additional information that has not been scanned . For information on how to view the original , please contact or visit the City Clerk's Office for assistance . 2000 Main Street 2nd Floor — City Hall Huntington Beach CA 92648 (714) 536-5227 { RECEIVED FROM " AND MADE A PART OF TWE_ .r=CORD T l"i i. COUNCIL MEETING OF � OFFICE OF THE CITY CLERK Lj..jMe CONNIE SROCKWAY,CITY CLERK a CITY OF HUNTINGTON BEACH Inter-Department Communication _ TO: HON. MAYOR and MEMBERS OF THE CITY COUNCIL FROM: GAIL HUTTON, City Attorney v DATE: July 17, 2000 SUBJECT: City Council Meeting July 17, 2000, Agenda Item G-2A Summary of Attached Memorandum Responding to Questions Presented in the Letters from Randall Garrou and David Swerlin and at the July 51h Council Meeting SUMMARY 1. Can the City require distance between the patrons and entertainers at sex-oriented businesses if it also requires that specified anatomical parts be covered? Yes. There are still secondary effects of"lap dancing", touching, and simulated sexual activity even with the so-called pasties and G-strings. This issue was raised in the Tily B. case (cited in the attached memo) and the Appellate Court approved the Newport Beach ordinance which mandated clothing and distance requirements. 2. If we pass the anti-nudity ordinance, will we get a topless bar at Talbert and Beach? No. The ABC requires that local law concerning performer's attire be respected by ABC licensees. The City is not pre-empted by state law when it comes to conduct incidental to the sale of alcohol (see the Korean American Legal Advocacy case cited in the attached memo). 3. If we pass the anti-nudity ordinance, will be get a bar at Talbert and Beach? The granting of an ABC license is not automatic. There is no guarantee that the establishment will be licensed, even if the performers are clothed. If the City permits the display of genitalia and the establishment then permits it, the ABC will not issue a license to that establishment. The Huntington Beach Police Department is in favor of permitting an ABC licensed establishment over permitting the public display of genitalia at an unregulated business. 4. Does the Supreme Court case upholding anti-nudity ordinances as applicable to sex oriented business have any bearing here? 7/summary of the Yes. The cases cited in the memo, Kandyland and Tily B. upheld anti-nudity ordinances and sex oriented business regulations such as those proposed tonight and those already"on the books" in Huntington Beach. The facts and circumstances surrounding those cases are substantially similar to those here. The City Attorney is of the opinion that we may rely on these cases in enacting the proposed ordinances. 5. Are our findings adequate to support the proposed ordinances? Yes. The large black bindings previously provided to you contain much of the evidence upon which the findings are based. The findings themselves also recite examples of secondary effects of public nudity and of sex oriented businesses. They are similar in volume and content to those findings adopted by the City of Newport Beach. As noted, the Newport Beach ordinance was found constitutional in this respect. GAIL HUTTON, City Attorney /k Attachment: Full opinion re issues outlined in the summary. c: Ray Silver, City Administrator Ron Lowenberg, Police Chief 7/summary of the J� CITY OF HUNTINGTON BEACH Inter-Department Communication TO: HONORABLE MAYOR and CITY COUNCILMEMBERS FROM: GAIL HUTTON, City Attorney DATE: July 17, 2000 SUBJECT: CITY COUNCIL MEETING 7/17/00 AGENDA ITEM G-2A Establishing Public Nudity Prohibition and Modification of Penalties and Findings for violation of Sex Oriented Business Regulations This memo is in response to concerns raised about the City's proposed anti-nudity ordinance in letters from Randall Garrou and David Swerdlin and questions posed by City Council at the last meeting at which the ordinance was discussed. Questions posed by members of the City Council 1. Will the Flamingo necessarily be able to sell alcohol if the ordinance passes which requires certain anatomical parts to be covered? (a) The permit process No, the passage of the ordinance will not mean that the establishment will automatically become a bar. The Flamingo's owners will have to apply to the City for a conditional use permit, as establishments with on-site alcohol sales must have a CUP, pursuant to the City's zoning laws. If the Flamingo files an application with the State for a new Alcohol Beverage Control license, the application will be processed by the ABC in the customary manner. This process will include the ABC confirming that the establishment has complied with the City's permitting process and that the location is properly zoned. The process also involves the ABC consulting with the Huntington Beach Police Department concerning law enforcement problems with the business itself and in the area, a background check of the applicant, and an investigation of the vicinity to determine whether or not there is an undue concentration of businesses selling alcohol. There maybe protests by those objecting to the premise being licensed by the ABC: If there is a finding of undue concentration or high crime, the City of Huntington Beach would then consider whether nor not to issue a certificate of public convenience or necessity to enable liquor to be sold. Obviously, the mere fact that the performers not appear nude will not guarantee the granting of a CUP or an ABC license. Page 2 Mayor and City Council RE: Violations of SOB regulations (b) The ABC regulation of the business Part of the law under which the ABC operates (and to which applies to licensed premises) are a series of regulations promulgated by the State. One of these regulations (143.3) provides, in part, that performers exposing every part of the body except genitalia be on a stage at least 18 inches off the ground and at least 6 feet away from the nearest patron. Genitalia may never be exposed in an ABC licensed premise. There is no nude serving of beverages or food allowed, if even only the breasts of a female server are bared. There is also extensive regulation by the ABC of conduct within the business, such as solicitation of beverages, sexual activity, and sales to minors. Notably, another regulation (143.5) provides that a licensee may not provide entertainment in violation of city or county ordinances regarding attire. Therefore, it appears that performers would not be permitted to be "topless" if the anti-nudity ordinance passes, even if they receive an ABC license. The enforcement tools available to the ABC and the Police Department under the authority of the ABC would be far more extensive if the Flamingo were to serve alcohol. As a juice bar; the Flamingo would only be subject to the administrative citation process or civil action, unless you elect to retain the criminal penalty section of the ordinance. (c) How the proposed ordinance relates to alcohol sales The anti-nudity law would require that enumerated anatomical parts be minimally covered in public places, whether such places sell alcohol or not. As mentioned above and will be further addressed below, the ABC's rules govern the sale and distribution of alcohol, however the City may regulate operation of and conduct in the establishment even if liquor is consumed; and to reiterate, the ABC will require that the on-sale licensee comply with local ordinances relative to the attire of performers. The only incompatibility with the ABC and local laws concerning nudity is that if a city permits the exposure of genitalia and a business permits that exposure, the business will not be eligible for an ABC license. So while passing an anti-nudity law will NOT spawn topless bars or guarantee the granting of an ABC license, the failure to pass such a law and allow genitals to be exposed will effectively block an ABC license for a location which permits full nudity. Again, however, it is not the case that the applicant may simply choose between bottomless and an ABC license. The only"given" is that he will not get a liquor license if the entertainers expose their genitals. 2. May the City still require that there be no contact and be a separation between patrons and performers at sex oriented businesses if the anti-nudity ordinance is passed? Yes. Contrary to Mr. Garrou's statement at the July 5`h City Council meeting, the secondary effects associated with erotic performances are not obliterated by"pasties and G-strings". The conduct described in the SOB ordinance, the simulated sexual activity, touching, "lap dancing" and the like, may still be regulated by distance or separation requirements. Mr. Garrou's threat of litigation is specious in light of the fact that the City of Newport Beach had separation requirements in it's sex oriented business ordinance, those requirements applied to performers 7/sob3 Page 3 Mayor and City Council RE: Violations of SOB regulations with "G-strings and pasties", and the appellate court upheld the ordinance (Tily B. v City of Newport Beach (1998) 69 C.A.4`h 1). There should be no reason why the state courts would rule in a different manner.if presented with a similar ordinance such as the one here. 3. Aren't the nude dancers who already have permits "grandfathered"? No. As stated by Deputy City Attorney Paul D'Alessandro at the July 5`h meeting, the new law regulates conduct of persons in public, not the property or business in question. The concept of legal non conforming uses, or grandfathering, is a zoning concept and does not apply to nudity. In any event, the dancers have permits to dance, subject to the regulations of the City. They do not have"nude dance permits". Mr. Swerdlin's letter to the Citv Council dated Julv 10, 2000 In his letter, Mr. Swerdlin makes various assertions about the alleged consequences of passing the anti-nudity ordinance. We will paraphrase and number his contentions and then address them in the order in which they are made in the letter. 1. The case of City of Erie v. Pap's A.M. "Kandyland" (cited in your findings to the proposed ordinance) is not applicable to the Flamingo Theater. As stated in the Request for Council Action which accompanies the proposed ordinances, the United States Supreme Court in Kandyland validated the City of Erie's ban on all public nudity, including nudity in dance establishments and bars open to the public. Also noted in the RCA was the fact the City of Newport Beach was successful in defending their ordinance requiring exotic dancers to wear clothing to cover specific anatomical parts. The Kandyland case was brought by an operator of an establishment featuring nude erotic dancing. The Court found that proscribing nudity in the establishment and other places was within the City's power to protect public health and safety and combated the harmful secondary effects associated with adult dancing. In support of his statement that the Kandyland case does not apply to the Flamingo situation, Mr. Swerdlin references the letter presented to Council on July 5, 2000, written by Randall Garrou. However, Mr. Garrou's letter cites the Kandyland case, and quotes the Kandyland Court, to support his argument that the case not only applies to the Theater, but requires the City to let it retain the nudity. We will further discuss points raised by Mr. Garrou below. 7/sob3 Page 4 Mayor and City Council RE: Violations of SOB regulations 2. Passage of the anti-nudity ordinance will cost the City if someone brings a legal challenge to it. Anytime a lawsuit is brought against the City it costs money to defend it. The City Attorney has carefully reviewed the proposed ordinance, with possible legal challenges in mind. Like the anti- nudity ordinance in the City of Newport Beach and other cities, the proposed ordinance should withstand legal challenge. Bear in mind that the decision of the Appellate Court in the Newport Beach case was very recent and the situation in Newport was very similar to the circumstances here. 3. Passage of the anti-nudity ordinance as it is drafted will result in the Court's invalidating it, leaving the City with no anti-nudity ordinance at all. As just stated, Newport Beach was successful in defending it's anti-nudity law in a case brought by the owner of a nude dance establishment. As is the case here,Newport had an ordinance which required"pasties and G-Strings" and also regulations which mandated that the patrons be separated from the exotic dancers. Unless the Fourth Appellate District Court has a radical change of mind, the proposed ordinance here should be upheld. In fact, the City now has no anti-nudity ordinance. 4. Because the ordinance bans public display of certain anatomical parts,people could be in public, clothed only in that which the ordinance requires. True; and if the ordinances does not pass, they could be in public dressed in less than that. The findings presented to you relate to secondary effects which have been created by public nudity, nudity being defined in terms of the exposure of areas of the body. Common sense would tell us what those areas are. Mr. Swerdlin complains that women must cover only the nipple region of the breast. The findings before you do not support the proposition that secondary effects are created by the wearing of garments which merely show cleavage. Requiring clothing of anatomical parts such as the stomach or upper breast may be desirable in given cases but is probably not legally supportable. You should be aware that in at least one jurisdiction we are aware of(Florida) cities have banned public display of the cheeks of the buttocks. The ordinances there are very specific as to the minimum size of the clothing required and as to the area to be covered. If you decide to prohibit the so-called thongs, the City Attorney may or may not be able to support that from a legal standpoint. Since it is not before you in the proposed ordinance, we have not conducted research into the issue. S. The ordinance will cause the Flamingo to seek a liquor license from the State. The causation argument is a little difficult to understand, but presumably the argument is that full frontal nudity is a big enough draw to overcome not being able to serve alcohol, but when the 7/sob3 Page 5 Mayor and City Council RE: Violations of SOB regulations actual genitalia must be covered, patronage will drop and alcohol must be sold to make up for the reduction in clientele. Equally plausible however is that there is a percentage of the population who will pay to view live performances if genitals are displayed and no amount of liquor will attract them if the performers are covered. The group that will not patronize the establishment if the genitals are covered are not necessarily smaller than the group attracted by alcohol sales. It appears somewhat as though the proponents of the Flamingo are using the threat of selling alcohol as a means to scare people away from supporting the anti-nudity ordinance. In that regard, it should be noted that the Huntington Beach Police would actually prefer an alcohol licensed premise over an unregulated club with full nudity. While it is the case that genitals must be covered in businesses licensed by the State Alcoholic Beverage Control, the performers covering their genitals will not automatically generate the granting of a state license. Mr. Garrou's comments to the Council at the July 5th, 2000 meeting. 1. With minimal clothing covering specified anatomical parts, there will no longer be any "secondary effects" of sex oriented entertainment, and therefore the City may not require distance between patrons and entertainers. This statement was addressed above, but to reiterate, this point was litigated in the Tily B. case (cited above). This was a published opinion of the California Appellate Court for our district. In that case, the City of Newport required"pasties and G-strings" as well as distance between patrons and dancers. The Court found the ordinance constitutional and noted that "in mandating the minimum covering of pasties and a G-string""[T]he City enacted the ordinance in part to deal with the `undesirable secondary effects associated with adult-oriented entertainment'(Newport Beach Ord. No. 95-15), which is a sufficient governmental interest to justify the restrictions" (lily B. v. City of Newport, supra, at p. 12). 2. If the Flamingo gets an ABC license, the City cannot regulate the business because it is pre- empted by ABC laws and therefore, the Flamingo would become a topless bar, irrespective of the City's enacting an anti-nudity law. The pre-emption issue in the context of liquor sales was addressed by the State Court of Appeal in Korean American Legal Advocacy Foundation v. City of Los Angeles (1994) 23 C.A.4`h 476; 28 Cal. Rptr.2d 530. An ordinances is not pre-empted by California Constitution Article XX, section 22 (state shall have the exclusive power to license and regulate manufacture, sale, possession, and transportation of alcoholic beverages), when the purpose and effect of the ordinances is not to dictate, restrict or regulate the actual sale of alcoholic beverages. When a local law focuses on abating or eradicating nuisance activities in a particular place by imposing laws aimed at mitigating the effects of such activities, it is not pre-empted. The Alcoholic Beverage Control Act (Business and Professions Code section 23000 et seq) doe not evidence an 7/sob3 Page 6 Mayor and City Council RE: Violations of SOB regulations intent to occupy the filed insofar as the conduct within and around an on-sale establishment is concerned. Furthermore, as we stated above, the ABC regulations themselves require that a business comply with local ordinances insofar as attire of performers is concerned. 3. The City's findings are inadequate. The findings and the evidence is support of them was presented to you in large black organized binders two weeks ago. There were ample studies and examples of local secondary effects of adult businesses. In researching the adequacy of them, the City Attorney's Office contacted the attorney who litigated the Tily B. case on behalf of Newport Beach. He confirmed that the findings before you are similar to those supported by the Tily B. Court and also brought to our attention facts and circumstances in Newport which further evidence negative secondary effects of sex oriented businesses. We have added Newport's experiences to the proposed findings for adoption in support of the proposed ordinances. You should have reviewed the findings before you adopt the ordinances which are based on them. Provided you have done so, the findings should be deemed adequate.- GAIL HUTTON, City Attorney /sl c: Ray Silver, City Administrator Ron Lowenberg, Police Chief 7/sob3 RCA ROUTING SHEET INITIATING CITY ATTORNEY DEPARTMENT: SUBJECT: Establishing Public Nudity Prohibition and Modification of Penalties and Findings for Violation of Sex Oriented Business Regulations COUNCIL MEETING DATE: I July 17, 2000 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attorney) Not Applicable Subleases, Third Party Agreements, etc. (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attorney) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FORWARDED Administrative Staff Assistant City Administrator Initial City Administrator Initial [City Clerk ( ) EXPLANATION FOR RETURN OF ITEM: Only)(Below Space For City Clerk's Use CITY OF HUNTINGTON BEACH MEETING DATE: July 17, 2000 DEPARTMENT ID NUMBER: CA 07-00 Council/Agency Meeting Held: Deferred/Continued to: ❑ Approved ❑ Conditionally Approved ❑ Denied City Clerk's Signature Council Meeting Date: July 17, 2000 Department ID Number: CA 07-00 CITY OF HUNTINGTON BEACH REQUEST FOR ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS SUBMITTED BY: GAIL HUTTON, CITY ATTORNEY and RAY SILVER, CITY ADMINISTRATOR PREPARED BY: AIL HUTTON, CITY ATTORNEY .o� RONALD E. LOWENBERG, CHIEF OF POLICE SUBJECT: Establishing Public Nudity Prohibition and Mo ifi tion of Penalties and Findings for Violation of Sex Ori ed Business Regulations Statement of Issue,Funding Source,Recommended Action,Alternative Action(s),Analysis,Environmental Status, Attachment(s) Statement of Issues: Should the City establish a City-wide prohibition of public nudity and enforce all sex oriented business regulations civilly and should the City adopt additional findings in support of the existing sex oriented business ordinance? Funding Source: None. Recommended Action: 1. Adopt Ordinance No. repealing Huntington Beach Municipal Code Chapter 9.36 relating to indecent exposure. 2. Adopt Ordinance No. adding Chapter 9.37 pertaining to public nudity. 3. Adopt Ordinance No. amending Huntington Beach Municipal Code Chapter 5.70 limiting enforcement of sex oriented business regulations to civil remedies, making minor language changes and adopting findings which support the existing ordinance and the ordinance as amended. SOBRCA -2- 7/14/00 3:37 PM REQUEST FOR ACTION MEETING DATE: July 17, 2000 DEPARTMENT ID NUMBER: CA 07-00 Alternative Action(s): Do not adopt Ordinance Nos. and , do not repeal Chapter 9.36 and do not ' adopt findings. Analysis: In May, 1999, City Council considered an amendment to Huntington Beach Municipal Code to prohibit public nudity. Upon advice of the City Attorney, the City Council elected to delay the amendment pending the outcome of litigation on the state and federal levels. On March 29, 2000, the United States Supreme Court released its decision in the case of City of Erie v. Pap's A.M. (Wandyland'), validating Erie's right to ban all public nudity despite its "de minimus" effect on the expressive element of nude dancing. The plurality opinion in Kandyland (Justice O'Connor joined by three other Justices) held that the City of Erie properly relied on the negative secondary effects associated with nude dancing to support the ban on public nudity. In reaching this decision, a majority of the Court held that public nudity was not inherently expressive conduct, and public nudity ordinances are not "content based" restrictions on speech that are subject to "strict scrutiny" by the Court. Instead, a majority of the Court agreed to test the constitutionality of public nudity ordinances under a less exacting standard applicable to content neutral restrictions on symbolic speech. Under this standard, a public nudity ordinance is constitutional if it furthers a "substantial" government interest. The plurality opinion by Justice O'Connor concluded that Erie's public nudity ordinance passed this constitutional test based on the City's reliance on studies demonstrating the negative secondary effects associated with sex oriented businesses. The plurality held that the City need not conduct its own tests, but also noted that Erie did in fact produce evidence of local negative secondary effects during public hearings on the ordinance. The plurality further held that a public nudity law, such as the proposed ordinance here, that requires g-strings and pasties on otherwise nude dancers, sufficiently furthers the governmental interest in diminishing negative secondary effects, and complies with the constitutional requirement that the restriction be no greater than necessary to further the city's interest. Similarly, the city of Newport Beach was successful in defending their ordinances requiring exotic dancers to wear "g-strings and pasties." This is the subject of a published decision titled Tily B. v. City of Newport Beach, commonly referred to as "Mermaids." The proposed ordinance adding Huntington Beach Municipal Code Chapter 9.37 will establish a prohibition of public nudity in all places open to the public, including bars and restaurants, parks, beaches, and playgrounds. It will be enforceable against all existing SOBRCA -3- 7/14100 3:37 PM REQUEST FOR ACTION MEETING DATE: July 17, 2000 DEPARTMENT ID NUMBER: CA 07-00 and future Sex Oriented Businesses. Consistent with Kandyland, the public nudity ordinance recites the negative secondary effects associated with nude dancing. Because of the possibility that State Penal Code preempts any City criminal regulations, it is recommended that violations of the public nudity ordinance be civilly enforced. The Kandyland decision specifically deals with the Federal First Amendment issues. However, in California, there is still some question regarding preemption of criminal enforcement related to the regulating of sex oriented businesses. For example, the City of Anaheim was involved in two separate cases where the dancers successfully contended that the City could not criminally enforce regulations that overlap State Penal laws related to sexual conduct. The success of the City of Newport Beach in its civil enforcement efforts suggests that non-criminal enforcement mechanisms, such as administrative citations and civil injunctions, avoid the preemption issue and comport with the recent Supreme Court decision. Alternatively, it should be noted that the Anaheim and Newport cases concerned permits issued before the State Legislature amended §§318.5 and 318.6 of the Penal Code, apparently exempting from the pre-emption provisions of city laws regulating adult or Sexually Oriented Businesses. The City Attorney's office recommends civil enforcement to avoid any pre-emption issue, however that being said, retaining the criminal enforcement penalties in light of the Penal Code sections cited above is an option the Council should consider and would be a decision the City Attorney could defend. Based on similar concerns related to preemption, the City Attorney also recommends amendment of Huntington Beach Municipal Code Chapter 5.70 regulating Sex Oriented Businesses. The amendment modifies the penalty section of the ordinance making all violations of the chapter civilly enforceable. Three other proposed amendment have been made as well. The first, to Section 5.70.030, deletes the requirements that certain stock holders of a corporate applicant complete the Sex Oriented Business application as well. Relevant case law indicates that a city may require the disclosure of officers and directors of a corporation, as these individuals are responsible for the management and control of the Sex Oriented Business facility, but not of principal stock holders. The second change is in the hours of operation. It is recommended that the ordinance permit Sex Oriented Businesses to remain open until 2:00 a.m., instead of the current 11:00 p.m. The City Attorney's office recommends this change in light of recent case law and given the likelihood that the Sex Oriented Businesses must comply with a new anti-nudity ordinance proposed concurrently with the Sex Oriented Business ordinance here. The third change to the ordinance, adds and defines the term "operator." Further, it is recommended that the City Council carefully review the factual findings and adopt them in support of Chapter 5.70 and the proposed amendments to it and Chapter 9.37. These findings will not be codified in the Municipal Code, but will remain on file in the City Clerk's Office for public inspection. SOBRCA -4- 7/17/00 9:28 AM REQUEST FOR ACTION MEETING DATE: July 17, 2000 DEPARTMENT ID NUMBER: CA 07-00 Environmental Status: Not applicable. Attachment(s): City Clerk's Page Number No. Description 1 Ordinance No. repealing Huntington Beach Municipal Code Section 9.36 and Adding Section 9.37 2 Legislative Draft of H.B.M.C. 9.36 3 Ordinance No. amending Huntington Beach Municipal Code Section 5.70 4 1 Legislative Draft of HBMC 5.70 SOBRCA -5- 7/17100 9:28 AM ORDINANCE NO. AN ORDINANCE OF THE CITY OF HUNTINGTON BEACH AMENDING CHAPTER 5.70 OF THE HUNTINGTON BEACH MUNICIPAL CODE RELATING TO PENALTY FOR VIOLATION OF REGULATIONS AND FINDINGS IN SUPPORT OF CHAPTER 5.70 The City Council 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. In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. Nudity in the public park has resulted in numerous arrests for violations of the California Penal Code related to public fornication and lewd acts. These crimes have occurred after public exposure of gentialia and in areas open to the general public. Citizen complaints have been received by the Police Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity. 00ord/mc570-o/7/14/00 1 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.4`h 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, and 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. 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 businesses and nudity in public 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 public nudity and 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 public nudity and 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), cert. denied, 120 S.Ct. 1553, (2000); several California cases, including but not limited to: 00ord/mc570-o/7/14/00 2 Tily B. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener, 3 Cal.4th 832 (1993), cert. 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 (1 lth 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.). The City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity 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. 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.App.4th 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 finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; persons utilizing said places by appearing thereon without clothing and/or with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling other public health, safety and welfare obligations; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct. The City Council recognizes the possible harmful effects on children and minors exposed to public nudity and to the effects of sex-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.) 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 00ord/mc570-o/7/14/00 3 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.AppAth 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 public nudity and 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 takes legislative notice of the facts recited in the case 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 result in secondary effects such as prostitution, drug dealing, and other law enforcement problems. 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. 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. 00ord/mc570-o/7/14/00 4 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 ofdacksonville, 176 F. 3d 1358 (111" Cir. 1999); and City of Colorado Springs v. 2354Inc., 896 P.2d 272 (1995). 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 specifies 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) 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 00ord/mc570-o/7/14/00 5 purposes of this Chapter, "corporation" shall also include not for profit corporations and limited liability corporations. (f) Operator: 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. (g) Performer. "Performer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas. (h) 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. (i) 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. (j) 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. (k) 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 where specified anatomical parts are exposed. As used in this chapter, the terms "regular and substantial course of 00ord/mc570-o/7/14/00 6 I 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. (1) 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." (m) 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, 00ord/mc570-o/7/14/00 7 characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas. (n) 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. (o) 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. (p) 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 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. (q) 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. (r) 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, 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; 00ord/mc570-o/7/14/00 8 (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 areas are exposed. (s) 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. (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. 00ord/mc57047/14/00 9 (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. (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, 2661, 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 00ord/mc570-o/7/14/00 10 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. (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 person(s) 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. (6) Any other similar permits obtained in other jurisdictions; including year of issuance and name of jurisdiction. SECTION 4. Section 5.70.080 of the Huntington Beach Municipal Code is hereby 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 00ord/mc570-o/7/14/00 1 1 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 5. 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. (3) Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs 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 areas" or "specified sexual activities." (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 except as pursuant to California Penal Code Section 313.2. 00ord/mc570-o/7/14/00 12 (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 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 00ord/mc570-o/7/14/00 13 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 waive the foregoing diagram for renewal applications if the Owner adopts a diagram that was previously submitted and certifies 00ord/mc570-o/7/14/00 14 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 00ord/mc570-o/7/14/00 15 not less than ten (10) foot candle as measured at the floor level. (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 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: (i) performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (ii) 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. 00ord/mc570-o/7/14/00 16 (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 6. Section 5.70.140 of the Huntington Beach Municipal Code is hereby amended to read as follows: 5.70.140 Violation--Penaltv. 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; (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 7. Section 5.70.150 of the Huntington Beach Municipal Code is hereby amended for content 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. 00ord/mc570-o/7/17/00 17 SECTION S. 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 day of 12000. ATTEST: Mayor City Clerk APPRO ED AS TO FORM: REVIEWED AND APPROVED: %o City Attorney City Administrator INITLATED AND AP VED: a Police Chie 00ord/mc570-o/7/17/00 18 Ordinance No. LEGISLATIVE DRAFT Chapter 5.70 Findings 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. In the City of Huntington Beach, the following secondary effects have been observed by the Police Department to have been generated by public nudity: Rioting has occurred after females exposed their breasts before a crowd in the Pier area of Huntington Beach. Their actions excited the crowd and triggered mob acts of violence and vandalism. Nudity in the public park has resulted in numerous arrests for violations of the California Penal Code related to public fornication and lewd acts. These crimes have occurred after 1egisdrft/mc570/7/14/00/2:33 PM 1 public exposure of gentialia and in areas open to the general public. Citizen complaints have been received by the Police Department and the displays of public nudity have precluded families and their children from using public facilities for concerns of being exposed to sexual activity and nudity. 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.41h 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, and 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. 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 and nudity in public 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 public nudity and 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 Iegisdrfdmc570/7/14/00/2:33 PM 2 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 public nudity and 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. 24569 115 L.Ed.2d 504 (1991); FW/PBS, Inc. v. Dallas, 493 U.S. 2159 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. 509 96 S.Ct. 24409 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), cert. denied, 120 S.Ct. 1553, (2000); several California cases, including but not limited to: Tily B. v. City of Newport Beach, 69 Cal.AppAth 1 (1998); City of National City v. Wiener, 3 CalAth 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), cent. 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 (llth Cir. 1991), cert. 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.). The City Council recognizes that the most recent U.S. Supreme Court decisions regarding local regulation of public nudity 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. 5609 111 S.Ct. 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. 1egisdrft/tnc570/7/14/00/2:33 PM 3 The City Council finds that it is both in the public interest and necessary to protect and promote the public health, safety and welfare and that said places open to the public be utilized and enjoyed by as many persons as possible; that maximum utilization and enjoyment of places open to the public can only be obtained through imposition of regulations regarding activities thereon; persons utilizing said places by appearing thereon without clothing and/or with the private parts of their bodies exposed, unreasonably interferes with the rights of all persons to use and enjoy said places open to the public by causing many persons to leave and others not to use said places; that such conduct and behavior imposes an extraordinarily unusual burden on City employees charged with the maintenance of said places and public safety personnel who are diverted from fulfilling other public health, safety and welfare obligations; that the presence of persons who are unclothed and exposed in places open to the public tend to discourage the use and enjoyment of said places, and creates a nuisance and is offensive to members of the public who wish to use and enjoy said places and who are unwillingly exposed to such conduct. The City Council recognizes the possible harmful effects on children and minors exposed to public nudity and to the effects of sex-oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure. The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code § 313 et seq.) 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.AppAth 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 public nudity and 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 takes legislative notice of the facts recited in the case of Key, 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.App.4th 1, regarding how live sex-oriented entertainment 1egisdrft/mc570/7/14/00/2:33 PM 4 facilities result in secondary effects such as prostitution, drug dealing, and other law enforcement problems. 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 3259 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. 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. 1egisdrft/mc570/7/14/00/2:33 PM 5 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 (111h Cir. 1999); and City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995). Iegisdrft/mc570/7/14/00/2:33 PM 6 Chapter 5.70 SEX ORIENTED BUSINESSES (2523-12/81, Urg. Ord. 3341-10/96, 3431-7/99) Sections: 5.70.05 Purpose 5.70.010 Definitions 5.70.015 Statements And Records 5.70.020 Permit Required 5.70.030 Application For Sex Oriented Business Permit 5.70.035 Sex Oriented Business Permit Issuance 5.70.040 Sex Oriented Performer Permit 5.70.045 Sex Oriented Performers Permit Issuance 5.70.050 Applicant To Appear 5.70.055 Repealed- Ord. 3431 - 7/99 5.70.060 Repealed- Ord. 3431 - 7/99 5.70.065 Repealed - Ord. 3431 - 7/99 5.70.070 Permit Renewal 5.70.080 Permits Nontransferable 5.70.090 Sex Oriented Businesses--Change Of Location Or Name 5.70.095 Sex Oriented Performer--Change Of Location Or Name 5.70.100 Sex Oriented Business Standards Of Operation 5.70.110 Inspections 5.70.115 Revocation of a Sex Oriented Business Permit 5.70.120 Revocation of a Sex Oriented Performer Permit 5.70.130 Regulations Nonexclusive 5.70.140 Violation--Penalty 5.70.150 Unlawful Operation Declared Nuisance 5.70.160 Minors And Intoxicated Persons 5.70.170 Employment Of Persons Without Permits Unlawful 5.70.180 Severability 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 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. (Urg. 3341-10/96) 1egisdrft/mc570/7/14/00/2:33 PM 7 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. (Urg. 3341- 10/96) 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. (Urg. 3341-10/96) 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 specifies anatomical areas. (Urg. 3341-10/96, 3431-7/99) (b) Chief of Police. "Chief of Police" means the Chief of Police or his or her designee. (Urg. 3341-10/96) (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). (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (e) Owner er Permit holder or Permittee. " ", "Permit holder" or "Permittee" rneans-any of the f 11,,wing, shall refer to the person or entity to whom the permit is issued and shall include, but not be necessarily limited to the following: (Urg. 3341-10/96, 3431-7/99) (-i)(1) the sole proprietor of a Sex Oriented Business; of (Urg. 3341-10/96, 3431- 7/99) Eii?(2) Iegisdrt1/mc570/7/14/00/2:33 PM 8 Sex Qr-ie toa Basin . (Urg. 3341-10/96, 3431-7/99) the partnership owning a Sex Oriented Business, and each of the partners; or (4i)(3) 1 elde. fer- ., c Ofie tea Business wivned and eper-ated by the eerperatien. the corporation owning a Sex Oriented Business and each of its officers and directors, but not individual shareholders. For purposes of this Chapter, "corporation" shall also include not-for-profit corporations and limited liability corporations. (Urg. 3341-10/96, 3431-7/99) (f) Operator: 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. (f)(g) Performer. "Performer" means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical areas. (3431-7/99) W(h) 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.(Urg. 3341-10/96, 3431-7/99) (h)(i) 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. (Urg. 3341-10/96, 3431-7/99) 0)0) 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. (Urg. 3341- 10/96, 3431-7/99) Iegisdrfdmc570/7/14/00/3:29 PM 9 E})(k) 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 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: (Urg. 3341-10/96, 3431-7/99) (i)(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 (Urg. 3341-10/96, 3431- 7/99) (4)(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. (Urg. 3341-10/96, 3431-7/99) (i4)(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. (Urg. 3341-10/96, 3431-7/99) ( }(1) Sex Oriented Hotel/Motel. "Sex Oriented Hotel/Motel" means a hotel or motel, which (Urg. 3341-10/96, 3431-7/99) as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed legisdrft/mc570/7/14/00/3:29 PM 10 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 (Urg. 3341-10/96, 3431-7/99) R(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." (Urg. 3341-10/96, 3431-7/99) (4)(m) 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. (Urg. 3341-10/96, 3431-7/99) (m)(n) 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. (Urg. 3341-10/96, 3431-7/99) (fi)(o) 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. (Urg. 3341-10/96, 3431-7/99) (e)(p) 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 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. (Urg. 3341-10/96, 3431-7/99) ( (q) 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. (Urg. 3341-10/96, 3431-7/99) W(r) Specified sexual activities. "Specified sexual activities" means any of the following: (Urg. 3341-10/96, 3431-7/99) IegisdrtVmc570/7/14/00/3:29 PM 11 (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. (Urg. 3341-10/96) (2) Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; (Urg. 3341-10/96) (3) Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or (Urg. 3341-10/96) (4) Fondling, erotic or sexually touching of human genitals, pubic region, buttocks, cleft of the buttocks, female breast; or anal region. (Urg. 3341-10/96) (5) Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or (Urg. 3341-10/96) (6) Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or (Urg. 3341-10/96) (7) Human excretion, urination, menstruation, vaginal or anal irrigation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (r-)(s) Specified anatomical areas. "Specified anatomical areas" means any of the following: (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96) (2) Human male genitalia in a discernibly turgid state, even if completely and opaquely covered. (Urg. 3341-10/96) legisdrft/mc570/7/14/00/3:29 PM 12 (3) Any device, costume, or covering that simulates any of the body parts included in subdivisions (1) and(2) above. (Urg. 3341- 10/96) 5.70.015 Statements and records. Person(s) required to obtain a Sex Oriented Business Permit shall maintain complete records which can be segregated with regard to all transactions involving such products, merchandise, services or entertainment which are sufficient to establish the percentage of gross receipts of the business which is derived from such transactions. (Urg. 3341-10/96, 3431-7/99) Such records shall be maintained for a period of at least three (3) years. (Urg. 3341-10/96) 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. (Urg. 3341-10/96) 5.70.020 Permit required. (a) No person, association, partnership or corporation shall 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 Permit and a business license from the City of Huntington Beach. (Urg. 3341-10/96, 3431-7/99) (b) To obtain a permit to own, operate, engage in, conduct or carry on any Sex Oriented Business, the Owner 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 paid to the City to defray, in part, the cost of investigation and report required by this chapter. The receipt, or a copy thereof, shall be supplied to the Chief of Police at the time such application is submitted. (Urg. 3341-10/96, 3431-7/99) (c) The application for Permit does not authorize the engaging in, operation of, conducting of, or carrying on of any Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (d) Only the Owner of the Sex Oriented Business is eligible to obtain a Sex Oriented Business Permit. (Urg. 3341-10/96, 3431-7/99) (e) The Owner shall post the Permit conspicuously in the Sex Oriented Business Premises. (Urg. 3341-10/96, 3431-7/99) (f) The fact that an Owner has other types of state or City permits or licenses does not exempt the Owner from the requirement of obtaining a Sex Oriented Business Permit. (3431-7/99) 5.70.030 Application for Sex Oriented Business Permit. Each application for a Sex Oriented Business permit shall contain the following information: (Urg. 3341-10/96) IegisdrtVmc570/7/14/00/3:29 PM 13 (a) Owner Information (Urg. 3341-10/96, 3431-7/99) (1) The full, true name and any other names, including aliases, used by the applicant. (Urg. 3341-10/96) (2) The present business address and telephone number of the applicant. (Urg. 3341-10/96, 3431-7/99) (3) Acceptable written proof that the applicant is at least eighteen(18) years of age. (Urg. 3341-10/96, 3431-7/99) (4) The social security number and state driver's license or identification card of the applicant. (3431-7/99) (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. (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) (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, and eaeh st ekholder held;„bmore than went 1egisdrft/mc570/7/14/00/3:29 PM 14 o , i IUlS1ISs-V pCISIIl Ul11 Ly pfeperty interests. 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. All i,,,1;.`;,1uals owning a twenty poffnt (20';) ^ o+to equitable interest, ' .1. ing ^1+ U ni ty J1Vpo tJ interests in the S Oriented Business shall eamplete and sign all applieatien fefms required ef an individual applicant under-this ehapteT-, but on!y^ plie.,tio fee shall be ,.,,.,,.ge rUrg. 3341-10/96, 3431- 7/99) (b) Business Information (Urg. 3341-10/96) (1) The name and address of the owner and lessor of the real property upon which the business is to be conducted. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) (3) The address to which notice of action on the application is to be mailed. (Urg. 3341-10/96) (4) The name(s) of the responsible person(s) 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). (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (6) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.035 Sex Oriented Business Permit Issuance. (Urg. 3341-10/96, 3431-7/99) Iegisdrft/mc570/7/14/00/3:29 PM 15 (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. (Urg. 3341-10/96, 3431- 7/99) 5.70.040 Sex Oriented Performer Permit (Urg. 3341-10/96, 3431-7/99) (a) No person shall engage in or participate in any live performance depicting specified anatomical areas or involving specified sexual activities without a valid Sex Oriented Performer Permit issued by the City. (Urg. 3341-10/96, 3431-7/99) (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) (f) The completed application shall contain the following information and be accompanied by the following documents: (Urg. 3341-10/96, 3431-7/99) (1) The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant; (Urg. 3341-10/96) (2) The applicant's height, weight, hair and eye color and date and place of birth; (Urg. 3341-10/96, 3431-7/99) (3) Present residence address and telephone number; (Urg. 3341- 10/96, 3431-7/99) (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, 2661, IegisdrR/mc570/7/14/00/3:29 PM 16 647(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. (Urg. 3341-10/96, 3431-7/99) (5) The social security number and state driver's license or identification number of the applicant. (Urg. 3341-10/96, 3431- 7/99) (6) Acceptable written proof that the applicant is at least eighteen (18) years of age; (Urg. 3341-10/96, 3431-7/99) (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; (Urg. 3341-10/96, 3431-7/99) (8) The business address and telephone number where the performance will take place. (3431-7/99) (9) Any other similar permits obtained in other jurisdictions, including year of issuance and name of jurisdiction. (3431-7/99) 5.70.045 Sex Oriented Performers Permit Issuance. (Urg. 3341-10/96, 3431-7/99) Within ten (10) business days of receipt of a completed application, as set forth in Section 5.70.040 and payment of the applicable fees, the Chief of Police shall issue a Sex Oriented Performers Permit. However, issuance of the permit does not preclude revocation of the permit pursuant to Section 5.70.120. (Urg. 3341-10/96, 3431-7/99) 5.70.050 Applicant to appear. The applicant for a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (Urg. 3341-10/96, 3431-7/99) 5.70.070 Permit renewal. Each Sex Oriented Business Permit and Sex Oriented Performers Permit shall expire one (1) year from the date of issuance. The applicant shall make application for renewal to the Chief of Police on a form provided by the Chief of Police accompanied by the renewal fee and a copy of the Permit to be renewed. 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. (Urg. 3341- 10/96, 3431-7/99) 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 1egisdrtUmc570/7/14/00/3:29 PM 17 such renewal shall be given, in writing, to the permittee within ten (10) 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 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. (Urg. 3341-10/96, 3431-7/99) The applicant for renewal of a Sex Oriented Business Permit or a Sex Oriented Performers Permit shall personally appear during normal business hours 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. (3431-7/99) 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. eithe an),individual whe pr-evieusly owned less than twenty per-eent 0 0 steek authefized but not issued at the time ef the granting, of a pennit is thefeafte issued d sold, *,..,.,stuffed or-assigned. (Urg. 3341-10/96, 3431-7/99) 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. (Urg. 3341-10/96) (b) No Sex Oriented Business Performer permit may be sold, transferred or assigned to any other person or persons. (3431-7/99) 5.70.090 Sex Oriented Businesses -- Change of location or name. (Urg. 3341-10/96) (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 city, and approval has been obtained from the Chief of Police. Such approval shall not be given unless all requirements and regulations, as provided herein for applications for permits, have been met. (Urg. 3341-10/96, 3431-7/99) Iegisdrft/mc570/7/14/00/3:29 PM 18 (b) No permit holder shall operate, conduct, manage, engage in, or carry on a Sex Oriented Business under any name other than his name and the name of the business as specified on the applicable permit. (Urg. 3341-10/96, 3431-7/99) (c) Any application for an extension or expansion of a building or other place of business where a Sex Oriented Business is located shall require inspection and shall comply with the provisions and regulations of this Chapter. (Urg. 3341-10/96) 5.70.095 Sex Oriented Performer--Change of location or name. No permit holder shall perform under any name other than the name specified on his or her permit in any other location other than the location specified on his or her permit. (3431-7/99) 5.70.100 Sex Oriented Business Standards of Operation. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) All indoor areas of the Sex Oriented Business within which patrons are permitted, except restrooms, shall be open to view at all times. (Urg. 3341-10/96) (3) Signage shall conform to the standards of the Huntington Beach Zoning and Subdivision Ordinance Code except that such signs 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 areas" or "specified sexual activities." (Urg. 3341-10/96, 3431-7/99) (b) General Provisions (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (2) No person under the age of 18 years shall be permitted within the premises at any time except as pursuant to California Penal Code Section 313.2. (Urg. 3341-10/96, 3431-7/99) legisdrft/mc570/7/14/00/3:29 PM 19 (3) The Sex Oriented Business shall not operate or be open between the hours of 11 p. . 2:00 a.m. and 11:00 a.m. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) legisdrtVmc570/7/14/00/3:29 PM 20 (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. (Urg. 3341- 10/96) (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. (Urg. 3341-10/96) (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. (Urg. 3341-10/96) (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/exii to the business. (Urg. 3341-10/96) (d) The following additional regulations shall pertain to Sex Oriented Motion Picture Arcades which provide more than one viewing area: (Urg. 3341-10/96) (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 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. (Urg. 3341-10/96) legisdrtbmc570/7/14/00/3:29 PM 21 (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341- 10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431- 7/99) 1egisdrWmc570/7/14/00/3:29 PM 22 (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. (Urg. 3341-10/96, 3431-7/99) (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: (Urg. 3341-10/96) (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: (Urg. 3341-10/96) (i) performed upon a stage or platform located at least eighteen (18) inches above the level of the floor; and (Urg. 3341-10/96, 3431-7/99) (ii) a distance of at least six (6) feet is maintained between any performer and any patron. (Urg. 3341- 10/96, 3431-7/99) (2) The Sex Oriented Business shall provide separate dressing room facilities for performers which are exclusively dedicated to the entertainers' use. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) Iegisdrf/mc570/7/14/00/3:29 PM 23 5.70.110 Inspections. (Urg. 3341-10/96, 3431-7/99) The permit holder shall allow the City of Huntington Beach and its 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. (Urg. 3341-10/96, 3431-7/99) 5.70.115 Revocation of a Sex Oriented Business Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Business Permit when: (Urg. 3341- 10/96, 3431-7/99) (1) The permit holder is convicted of a felony or misdemeanor occurring upon or relating to the prdmises 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(Urg. 3341- 10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) (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 (Urg. 3341-10/96, 3431-7/99) 1egisdrft/mc570/7/14/00/3:29 PM 24 (4) The Sex Oriented Business has been operated in violation of any of the requirements of this Chapter and, (Urg. 3341-10/96, 3431-7/99) (1) 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 (Urg. 3341-10/96) (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; or (Urg. 3341-10/96, 3431-7/99) (5) The applicant has made material misrepresentations or fraudulent, false, or misleading statements in the application; or (3431-7/99) (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 (3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96, 3431-7/99) (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. (3431-7/99) 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. (3431-7/99) ie-isdrft/mc57on/14/00/3:29 PM 25 5.70.120 Revocation of a Sex Oriented Performer Permit. (3431-7/99) (a) The Chief of Police shall revoke a Sex Oriented Performer Permit when: (3431-7/99) (1) The applicant has made material misrepresentations or false or misleading statements in the application; or(3431-7/99) (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 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 (3431- 7/99) (3) The Sex Oriented Performer has violated the requirements of this Chapter; or (3431-7/99) (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 five (5) years prior to the date of application. (3431-7/99) (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. (3431-7/99) (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. (3431-7/99) 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. (Urg. 3341-10/96) 5.70.140 Violation--Penalty. Any el^ti^a the pr-e isions violation of this chapter shall be guilty ef a MISDEMEANOR, punishable by: a fine of five hundred dollars ie500 or b. 1egisdrft/mc570/7/14/00/3:29 PM 26 or-by both sueh finee t and impfisenfnent. (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; (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. 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 n ttefney addition t or-in kett e f a r, ^1-Gie 11 VSLS, p1VliVVrl1111� Vl preeeod F n1,n.- F nt Iaipanent ther-ee the ide by to L7o ham['. o , ~ , t manner-�TV Ylllbll V�' 1[1 v�. llt✓ shall tak ..eps and shall apply to stieh eettft ef eeuf4s as may have jur-isdietion to g per-son ftem g) 7 5.70.160 Minors and Intoxicated Persons. (Urg. 3341-10/96) (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 except as pursuant to California Penal Code Section 313.2. A sign giving notice of this provision shall be prominently posted at each entrance to the premises of the Sex Oriented Business. (Urg. 3341-10/96, 3431-7/99) (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. (Urg. 3341-10/96) 1egisdrfft/mc570/7/17/00/9:09 AM 27 (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. (Urg. 3341- 10/96) (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. (Urg. 3341-10/96) 5.70.170 Employment of Persons Without Permits Unlawful. (a) 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 Performer Permit. (Urg. 3341-10/96, 3431-7/99) (b) The owner, operator, manager or permittee in charge of or in control of the Sex Oriented Business which provides live entertainment shall provide proof of a valid Sex Oriented Performer Permit for each individual engaged in live performance upon demand of a police officer. Failure to provide proof is a violation of this chapter. (3431-7/99) 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. (Urg. 3341-10/96) 1egisdrfl/mc570/7/17/00/9:09 AM 28 LAW OFFICES WESTON, GARROU [3 DEWITT JOHN H. WESTON* A PARTNERSHIP OF,PROFESSIONAL CORPORATIONS SAN DIEGO OFFICE CLYDE DEWITT't WILSHIRE BUNDY PLAZA 432 F STREET G. RANDALL GARROU'I SUITE 202 COLIN C. HOLLEY 12121 WILSHIRE BOULEVARD, SUITE 900 SAN DIEGO. CA 92101-6138 JULIE A BEHRENS LOS ANGELES, CALIFORNIA 90025-1176 FAX (619) 239-1717 OF COUNSEL (310) 442-0072 (619) 232-54SS AUBREY I FINN CATHY E CROSSON FAX (310) 442-0899 A. DALE MANICOM 'A PROFESSIONAL CORPORATION ?ALSO ADMITTED IN TEXAS =ALSO ADMITTED IN UTAH August 1, 2000 Hon. Mayor Garafalo and Members of the C,-) c' Huntington Beach City Council c/o City Clerk City Hall 2000 Main Street - Huntington Beach, CA 92648 Re: (1) Very significant new development which suggests voting against enactment of proposed Ordinance No. 3469 regarding public nudity; and (2) request to speak during portion G-2 of the Agenda when Ordinance 3469 will be re-introduced on a first reading. Dear Mayor and Council Members: Under separate cover, I will be providing you my detailed analysis of the defects we believe exist in the evidentiary submission provided you by the City Attorney's office in support of adoption of Proposed Ordinance No. 3469 regarding public nudity, as well as my response to the City Attorney's two previous memoranda attacking our position. The purpose of this letter, however, is quite different. In a nutshell, it is to bring to your attention that on July 27, 2000, I obtained a very favorable decision from the United States Court of Appeals for the Ninth Circuit, which unanimously struck down an adult business regulation of the City of Los Angeles following fiercely contested litigation. (The attorneys' fees on our side alone in that case are currently at approximately $241,000.00) The Court held that cities may not justify ordinances restricting adult entertainment businesses simply by asserting that adult businesses cause certain adverse secondary effects. On that basis, the court invalidated a Los Angeles provision banning the exhibition of adult videotapes within adult bookstores and mandating that such uses operate as separate and distinct businesses located more than 1,000 feet away from each other. This decision sharply alters the scales in terms of whether proposed Ordinance No. 3469, should you enact it, would likely survive constitutional scrutiny in a court challenge. 3 LAW OFFICES WESTON, GARROU 8 DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Huntington Beach City Council August 1, 2000 Page 2 The decision in question is entitled Alameda Books v. City of Los Angeles,and a copy of the Opinion is attached hereto for your convenience. While the particular ordinance which the court struck down in that case is not the same as that which you are propos- ing to enact, the significance of the case is that it reinstates, at least within the Ninth Circuit, the proposition that the courts must look very closely at the evidence which a city asserts as its justification for enactment of a restriction on adult entertainment businesses. Any suggestion that a more relaxed standard of scrutiny would apply on the basis of the Supreme Court's recent decision in the Pap's case, was clearly and emphatically rejected by the Ninth Circuit Court of Appeals. This is, of course, significant, because the Supreme Court decision in Pap's garnered no majority opinion, whereas this new Ninth Circuit decision was unanimous. While your City Attorney has (at least prior to this most recent ruling) relied heavily on the Supreme Court decision in City of Erie v. Pap's A.M., _ U.S. , 120 S.Ct. 1382, _ L.Ed.2d _ (2000), and the Ninth Circuit's decision in Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), the Alameda Books decision has now found neither of those cases controlling, and instead articulated that the appropriate mode of scrutiny would come from another of our cases in the Ninth Circuit, Tollis, Inc. v. San Bernardino County, 827 F.2d 1329 (9th Cir. 1987). In that case, the Ninth Circuit struck down a San Bernardino County adult zoning ordinance after concluding that the City could not simply rely on the general assertion that adult businesses have adverse secondary effects, without providing additional evidence to show that each particular type .of adult business made subject to the restriction was in fact of a type which would likely have the adverse secondary effects asserted in the legislative findings. While the facts of that case are immaterial, its significance is that the Ninth Circuit, unlike many other courts, refused to give cities an open-ended benefit-of-the-doubt in examining whether there was a reasonable fit between the secondary effects upon which the City relies and the actual ordinance which it enacted. This more rigorous mode of judicial scrutiny (derived from Tollis) has now been reaffirmed by the Ninth Circuit in Alameda Books notwithstanding the intervening decisions in Paps and Colacurcio. For example, in the Alameda Books case, Los Angeles asserted that the ordinance was necessary to prevent adverse secondary effects attributable to combination adult bookstore/adult arcades, i.e., adult bookstores with peepshows in them. While there was no disagreement that such businesses had adverse secondary effects, the court concluded that those secondary effects were not adequate to justify the ordinance because it was equally possible that if the ordinance were allowed to operate, and the combination stores were split into a separate adult bookstore and another adult arcade 1,000 feet away, there might be just as many adverse secondary effects emanating solely from the adult arcade. LAW OFFICES WESTON, GARROU & DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Huntington Beach City Council August 1, 2000 Page 3 Specifically, the court stated: "There is nothing . . . to indicate that the same type of behavior that occurs in viewing booths in combination bookstore/arcades would not occur in an establishment that only furnishes an arcade." Based on that reasoning, the court found the ordinance invalid. In short, the Ninth Circuit made clear that an ordinance would not be upheld in this circuit unless the city which passed the law can demonstrate that the proposed ordinance would actually be effective in combatting asserted secondary effects. This bodes ill for Hunting- ton Beach's proposed anti-nudity ordinance. The City will have an impossible burden of demonstrating that there will be more secondary effects if the on-stage dancers are nude, rather than in pasties and g-strings, particularly given that you have other ordinances compelling strict customer/dancer separations at all times that the dancers are in the nude. In short, the Ninth Circuit is now affirmatively stating that a city has the burden to show that its ordinance will actually make a difference in the amount or intensity of adverse secondary effects. Also, in the Alameda Books case, the Los Angeles City Attorney, like your City Attorney, had argued that courts should "accord substantial deference to the predictive judgments of legislative bodies when analyzing content-neutral regulations that burden speech." However, in contrast to the highly deferential approach taken in the Colacurcio case, the Alameda Books opinion stated: "this deference to legislative decision making is not unbounded." Moreover, the court held that the burden of proof on the justifica- tion issue must be placed squarely on the City. (See fn. 6 of the Opinion.) Given this stunning last minute development, I urge you to reconsider your position before committing the City to a path that will commit it to expend enormous resources throughout many years of protracted litigation,particularly where the outcome is anything but certain (as even the City Attorney surely now must concede). Also,please be advised that, contrary to what you may have believed,our lawsuit against the City would not be filed in state court but would be filed in the federal courts which are subject to the rulings of the Ninth Circuit Court of Appeals. Moreover, in case you have not been fully apprised, should we prevail in that litigation, the federal civil rights laws expressly provide that the City must reimburse our clients for their very substantial attorneys' fees. Should this case be litigated all the way to the Supreme Court, the attorneys' fees could easily reach a half million dollars or more. This, of course, would be in addition to the attorneys' fees you must pay your own attorneys, for which you would not be entitled to any compensation under governing law. LAW OFFICES WESTON, GARROU 8 DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Huntington Beach City Council August 1, 2000 Page 4 In light of all of the above, and in light of the separate letter we will submit to you (which will-provide a detailed analysis of the specific evidence submitted by the City Attorney and the prior memoranda submitted by the City Attorney), we urge you to reconsider and not adopt Proposed Ordinance No. 3469, the anti-nudity ordinance. . � However, nothing said herein would prevent your separate consideration of the companion ordinance, No. 3470, which serves a number of municipal purposes entirely unrelated to the anti-nudity ordinance. Though we oppose that ordinance as well, we do not, at least at present, contemplate the necessity to litigate that one with the City. (Note: we have just been informed that there will be certain additional changes to Ordinance No. 3470, though we don't know precisely what those changes will be. Accordingly, we reserve the right, if necessary, to challenge that ordinance if any of these changes necessitate such a change in our position.) I_thank•you in.advance for your careful attention to this very significant new development. -Whether the City Attorney is convinced that Alameda Books is the death __ knell for the proposed anti-nudity ordinance or not, the City Attorney must concede that the-legal chances for your ordinance's.survival have, at-the very least, diminished to some extent,by the reasoning and ruling in Alameda Books. While we are sure your City Attorney will try to minimize its impact, we urge you to read it for yourself because it is the taxpayers who will ultimately suffer, regardless of whether you win or lose the upcoming litigation. In the final analysis, this is a political issue, not simply a legal one, and the decision must be yours, not the City Attorney's. The political (i.e., non-legal) considerations are: (1) If you proceed with this ordinance, you will surely condemn the City to very expensive and time consuming litigation, regardless of the outcome. (Moreover, there is now at least a very significant chance you would lose.) (2) On the other hand, your existing separation requirements which apply to all nude dancing are quite extensive and go a lot further than the anti-nudity ordinance in protecting against any real or imagined adverse secondary effects. In short, you simply don't need this additional and troublesome amendment. (3) Third, and as noted previously, enactment of this ordinance would provide strong incentive for not only our client, but any and all future live entertainment businesses in the City to sell alcohol (some of which may purchase existing establishments already licensed to serve alcohol). LAW OFFICES WESTON, GARROU 8 DEWITT A PARTNERSHIP OF PROFESSIONAL CORPORATIONS Huntington Beach City Council August 1, 2000 Page 5 (4) By passing an ordinance which expressly allows the wearing of pasties and g-strings on public beaches, the inevitable — even if unintended — effect of the ordinance will be to cause Huntington Beach to become a magnet for every nude beach enthusiast in Southern California who will be more than happy to come to a beach if all they are required to wear are g-strings and/or pasties. In light of these numerous political considerations, it is almost irrelevant whether the proposed ordinance would stand up after a long legal battle. Its enactment simply makes no sense under these circumstances. We trust you will act wisely and vote against adoption of Ordinance No. 3469. Sincerely, WESTON, GARROU & DEWITT By—C—erMU���� G. RANDALL GARROU GRG:jm LRG4764 Encls. 2000 WL 1047892 (Cite as: 2000 WL 1047892 (9th Cir.(Cal.))) Only the Westlaw citation is currently Michael L. Klekner, The City of Los available. Angeles, Los Angeles, California, for the defendant-appellant. United States Court of Appeals, Ninth Circuit. Appeal from the United States District Court for the Central District of ALAMEDA BOOKS, INC., a California Dean D. Pregerson, District California corporation; Highland Judge, Presiding Books, Inc., a California corporation, Plaintiffs- Before: Robert Boochever, Michael Daly Appellees, Hawkins, and Sidney R. Thomas, Circuit V. Judges. CITY OF LOS ANGELES, Defendant-Appellant. HAWKINS, Circuit Judge: No. 98-56200. *1 We must determine whether the district court was correct in concluding as Argued and Submitted Feb. 8, 2000 a matter of law that ordinances of the Filed July 27, 2000 City of Los Angeles (the "City" or "Los Angeles") prohibiting the operation of G. Randall Garrou, Weston, Garrou & adult businesses that both sell adult DeWitt, Los Angeles, California, for the products and contain facilities for the plaintiffs-appellees. viewing of adult movies or videos were inadequately supported by evidence of Robert W. Hargreaves, Best Best & adverse impact so as to violate the First Krieger, Rancho Mirage, California, for Amendment. We affirm. amicus curiae Sixty-Five (65) California Cities, in support of the appellant. I BACKGROUND G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, California, for On July 28, 1977, the City enacted amicus curiae Center for Fair Public Ordinance No. 151,294, adding section Policy in support of the appellees. 12.70 to the Los Angeles Municipal Code ("L.A.M.C."), which prohibits the Richard J. Hertzberg, Phoenix, Arizona, "establishment, substantial enlargement for amicus curiae L.J. Concepts, Inc., in or transfer of ownership or control" of an support of the appellees. adult business establishment "within 1,000 feet of another such business or KUtFSFARMVMSTDNU)W=cdawN -Unofficial Page 1 of 12- within 500 feet of any religious public park, or school. Each business institution, school or public park within occupies less than 3,000 square feet. Both the City of Los Angeles." L.A.M.C. § Alameda and Highland rent and sell 12.70(C) (1977). The regulation was sexually oriented products, including enacted after a comprehensive study, videotapes. Additionally, both businesses conducted in 1977 and assessing the provide booths where patrons can view impact of concentrations of adult videotapes for a fee. The booths are of businesses on surrounding areas, found a two types. In the Preview Booths positive correlation between customers can viewvideotapes that are concentrations of adult businesses and for rent or sale within the store. The increases in prostitution, robberies, Multi-channel Viewing Booths allow assaults, and thefts. [FN I] customers to choose from dozens of pre- selected videotape selections. In 1983, the City amended section 12.70(C), with the passage of Ordinance The video booths and the retail sales and No. 157,538 to prohibit so-called rental of tapes of both stores are located "multiple use" adult businesses. Section in the same commercial space within a 12.70(C), as amended, additionally single building. There are no distinctions, prohibits "the establishment or physical or otherwise, between the maintenance of more than one adult different operations within each of the entertainment establishment in the same stores. Each has only one entrance door, building, structure, or portion thereof...." and one employee supervises the entire L.A.M.C. § 12.70(C). The 1983 location. Additionally, the appellees are amendments also modified the existing the sole owners of each of their stores, definition of an "adult entertainment and revenue from the video booths and business" to specifically categorize inter the sales and rentals is not distinguished alia an "adult bookstore" and an "adult in any way, other than for internal arcade" as "separate adult entertainment accounting purposes. Notwithstanding businesses even if operated in these facts, it is uncontested that both conjunction with another adult businesses have operations that fall entertainment business at the same within the definitions of "adult establishment." L.A.M . C . § bookstore" and "adult arcade" under 12.70(B)(17). section 12.70(B)(17) of the L.A.M.C. Appellees, Alameda Books, Inc. *2 On March 15, 1995, a City building ("Alameda") and Highland Books, Inc. inspector found that Alameda was ("Highland"), are two adult businesses operating both an adult bookstore and an operating within the city limits of Los adult arcade in the same building and was Angeles. Neither is located within 1,000 therefore in violation of section 12.70(C). feet of another adult business nor within Alameda and Highland then joined as 500 feet of any religious institution, plaintiffs and sued for declaratory and K:URESEARCffiWESTDNLnWav W&%Vd -Unofficial Page 2 of 12- injunctive relief under 42 U.S.C. § 1983 (1999). We do not weigh the evidence or to prevent enforcement of the ordinance. determine the truth of the matter; rather, Both the City and the appellees filed we only decide whether there is a genuine cross-motions for summary judgment. issue of material fact for trial. See Colacurcio v. City of Kent, 163 F.3d 545, The district court initially denied both 549 (9th Cir.1998). motions on the First Amendment issues, concluding that there was a "genuine The constitutionality of a regulation is a issue of fact as to whether plaintiffs' question of law that is reviewed de novo. bookstore and arcade components were See Gonzalez v. Metropolitan Transp. separate businesses, like those whose Auth., 174 F.3d 1016, 1018 (9th concentration was examined by the 1977 Cir.1999), cert. denied, 120 S.Ct. 1553 studies." Alameda and Highland then (2000). filed a motion for reconsideration of the First Amendment portion of the district III. court's order denying summary judgment. ANALYSIS On June 2, 1998, the court vacated its A. Renton Analysis prior order and granted summary judgment for Alameda and Highland and *3 Our inquiry, though not the result, is issued a permanent injunction enjoining somewhat complicated by two varying the enforcement of the ordinance against formulations of the test governing our the appellees. The City then appealed to analysis. In Tollis v. San Bernardino this court. We have jurisdiction under 28 County, 827 F.2d 1329 (9th Cir.1987), U.S.C. § 1291. we were presented with the opportunity to apply the then-recent decision of the II. Supreme Court in City of Renton v. STANDARD OF REVIEW Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), which A grant of summary judgment is analyzed the constitutionality of city reviewed de novo. See, e.g., Robi v. zoning regulations that prohibited adult Reed, 173 F.3d 736, 739 (9th Cir.), cert. theaters from being located within 1,000 denied, --- U.S. ----, 120 S.Ct. 375, 145 feet of any residential zone, single- or L.Ed.2d 293 (1999). We must determine, multiple-family dwelling, church, park, viewing the evidence in the light most or school. Tollis held that Renton had favorable to the appellants, whether there established a "three-step inquiry" to are any genuine issues of material fact determine the constitutionality of such and whether the district court correctly ordinances. Tollis, 827 F.2d at 1332. A applied the substantive law. See, e.g., reviewing court must inquire: (1) whether Berry v. Valence Tech., Inc., 175 F.3d the ordinance is a time, place, manner 699, 703 (9th Cir.), cert. denied, --- U.S. - regulation; (2) if so, whether it is content- 120 S.Ct. 528, 145 L.Ed.2d 409 neutral or content- based; and (3) if Y_ tMEARCMVNSTDNL Wwied&vvN -Unofficial Page 3 of 12- content-neutral, whether it is "designed to necessarily dictates an identical outcome serve a substantial governmental interest under the other. Moreover, the and do[es] not unreasonably limit jurisprudence governing each test is fully alternative avenues of communication." applicable to both. Id. (internal quotations omitted); see also Renton, 475 U.S. at 47. Colacurcio, however, better formulates the test. First, the third step of Tollis More recently, we formulated this test in incorporates two distinct inquiries, which a slightly different and (we believe) more are more properly separated for both coherent manner. In Colacurcio v. City of conceptual and practical reasons in Kent, 163 F.3d 545 (9th Cir.1999), we Colacurcio. Additionally, Tollis looked to the Supreme Court's opinion in needlessly establishes the time, place or Ward v. Rock Against Racism, 491 U.S. manner inquiry as a distinct step. Time, 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 place or manner is an objective (1989), to determine the constitutionality description of a regulation (or one of the city's ordinance requiring nude proffered by the enacting legislative dancers to perform at least ten feet from body); it is not a talismanic incantation patrons. [FN2] Citing to Ward, we held affording the ordinance a lesser degree of that "[m]unicipalities may impose judicial scrutiny. To the contrary, the reasonable restrictions on the time, place question the courts must ask is whether or manner of protected speech, provided the time, place or manner regulation is the restrictions are: (1) content- neutral; content-neutral. The Supreme Court (2) narrowly tailored to serve a recognized as much in Ward when it significant government interest; and (3) excluded a time, place or manner leave open ample alternative channels for analysis, which it had included in Renton, communication of the information." from its discussion. For the sake of Colacurcio, 163 F.3d at 551. clarity and consistency in future opinions, and because we believe the Colacurcio The differences between the Tollis and formulation is more aptly constructed, we Colacurcio test are slight, yet obvious. will utilize it here. Colacurcio eliminates Tollis `s first step-- determining whether the ordinance is a *4 As a preliminary matter, we note that time, place or manner regulation--and section 12.70(C) comes under the general merely splits the two inquiries of Tollis `s category of a time, place, or manner third step--narrow tailoring to serve a regulation. Renton held that zoning significant government interest and regulations governing adult businesses ample alternative means o f are generally considered time, place or communication--into two separate steps. manner regulations. See Renton,475 U.S. _[FN3] Clearly, there is no substantive at 46. Moreover, section 12.70(C) does difference between Tollis and not ban adult entertainment Colacurcio, and a given result under one establishments altogether. See Tollis, 827 KVtFSEARMV/ESTDNLDWanrd&%Td -Unofficial Page 4 of 12- F.2d at 1332 (holding that ordinance the enactment of the original regulations. before the court was "obviously" a time, This is insufficient. place, or manner regulation "as it [did] not ban adult theaters altogether"). *5 The Study looked at the concentration of four types of adult businesses: Under Colacurcio `s first step (i.e. Tollis massage parlors, "bookstores/arcades," `s second step), a regulation is content- theaters, and adult motels. It assessed five neutral if the ordinance is "aimed to areas where these businesses were control secondary effects resulting from concentrated and compared crime rates in the protected expression rather than at these areas with rates in nearby "control" inhibiting the protected expression areas. Additionally, the Study measured itself." Tollis, 827 F.2d at 1332 (internal changes- in assessed land values from quotation omitted) (citing Renton, 475 1970 to 1976 in the study and control U.S. at 48-49); see also Renton, 475 U.S. areas. As noted, the Study concluded that at 48 (regulation is content-neutral if it is there was a positive correlation between "justified without reference to the content concentrations of these adult businesses of the regulated speech"). [FN4] We need and increases in prostitution, robberies, not decide whether the contested assaults, and thefts. regulation is content-neutral, for even if it were, it fails to satisfy the second step in The district court found that the Study the Colacurcio analysis (i.e. the third step addressed the secondary impact not of of Tollis ). [FN5] single adult business establishments, but of concentrations of separate, individual B. Colacurcio `s Second Step: adult businesses, and that appellees' Substantial Government Interest businesses are not separate in the sense that the businesses surveyed in the Study The City has a "substantial government were separate establishments. As the interest" in reducing crime in its Study was the only evidence to justify the neighborhoods. See Young v. American 1983 amendments, the district court held Mini Theatres, 427 U.S. 50, 71, 96 S.Ct. that summary judgment was appropriate 2440, 49 L.Ed.2d 310 (1976) ("[T]he because the City could not meet its city's interest in attempting to preserve burden to show that it"relied on evidence the quality of urban life in one that must supporting a reasonable belief that be accorded high respect."). At issue is combination businesses ... produced whether the regulations are "designed to harmful secondary effects of the type serve" this interest. We hold they are not. asserted" in the 1977 Study. We agree. [FN6] The only evidence relied upon by Los Angeles to justify the 1983 amendments The Study treated a bookstore/arcade to section 12.70(C) is the 1977 study (the combination as a single business or unit "Study"), which was used as the basis for of adult entertainment whose secondary Y_AtESEARCtnwBSTDNLDWwncdawpa -Unofficial Page 5 of 12- effects arise from its proximity to several provides enough of a basis to allow it to other units of adult entertainment. It did constitutionally proscribe combination not analyze a n individual adult businesses under section 12.70(C) bookstore/arcade combination as a of L.A.M.C. The City's arguments fail. concentration of adult businesses. In examining the City's regulation of Additionally, the Study was not directed adult businesses, we are mindful of at determining the impact of individual numerous admonitions from the Supreme adult entertainment business units. Court about the proper role of the Rather, its purpose was to ascertain the judiciary in scrutinizing legislative impact of a concentration of such judgments. In American Mini Theatres, business units in small geographic areas. the Supreme Court recognized that the Therefore, by categorizing certain courts are not to second-guess legislative businesses as "bookstore/arcades," the solutions. In upholding the validity of a Study determined not what the impact of zoning regulation prohibiting adult a "bookstore/arcade" was on the entertainment establishments within surrounding area, but the impact of a 1,000 feet of one another, the Court bookstore/arcade as an individual stated: "It is not our function to appraise business entity that was part of a the wisdom of [the City Council's] concentration consisting of multiple adult decision.... Moreover, the city must be business establishments. As such, the allowed a reasonable opportunity to Study did not identify any harmful experiment with solutions to admittedly secondary effects resulting from serious problems." 427 U.S. at 71; see bookstore/arcade combinations as also Renton, 475 U.S. at 52 (quoting individual business units. American Mini Theatres ); United States v. Albertim, 472 U.S. 675, 689, 105 S.Ct. The City does not argue that the Study 2897, 86 L.Ed.2d 536 (1985) (validity of explicitly considered adult arcades and a content-neutral time, place, or manner bookstores as separate business entities, regulation does not "turn on a judge's an argument that would support its agreement with the responsible contention that a combination decisionmaker concerning the most bookstore/arcade as an individual appropriate method for promoting business entity is a "concentration" of significant government interests"); Jones adult businesses. Nor does it dispute that Intercable, Inc. v. City of Chula Vista, 80 the concentration of adult businesses was F.3d 320, 326 (9th Cir.1996) (courts the primary cause of the harmful "accord substantial deference to the secondary effects identified in the Study. predictive judgments" of legislative Indeed, the pertinent findings of the bodies when analyzing content-neutral Study focus solely on the concentration regulations that burden speech) (quoting of separate adult business entities. Turner Broad. Sys., Inc. v. FCC ("Turner Rather, the City asserts that the Study I"), 512 U.S. 622, 665, 114 S.Ct. 2445, KU?ESEARCMWESTDNLDWame&wpd -Unofficial Page 6 of 12- 129 L.Ed.2d 497 (1994)). effects identified in the Study. As the above discussion indicates, the evidence *6 This deference to legislative decision the City has "relied" upon--the 1977 making is not unbounded. In Tollis, we Study--contains no findings that an established a predicate evidentiary individual combination bookstore/arcade requirement that must be met before we produces any of the increased crime the will defer to the judgments of legislative Study found resulting from a bodies enacting content- neutral time, concentration of adult businesses. place, or manner regulations that Therefore, it is unreasonable for the City incidentally burden speech. Tollis to infer that absent its regulations, a considered an injunction against the bookstore/arcade combination would enforcement of a county zoning have harmful secondary effects. See also ordinance prohibiting adult-oriented Acorn Invs., Inc. v. City of Seattle, 887 businesses from locating within 1,000 F.2d 219, 222 (9th Cir.1989) (holding feet of various other establishments (e.g., unconstitutional under Renton a city schools, churches, etc.). The county had licensing fee for specific types of adult interpreted the ordinance such that a theaters because the City had "failed to single showing of an adult movie would prove" that these theaters were make a theater, an "adult-oriented responsible for fostering the' alleged business" for the purposes of the secondary effects-- criminal activity--that ordinance. See 827 F.2d at 1331. were given as justification for the licensing fee); Turner Broad. Sys., Inc. v. In affirming the injunction, we held that FCC (Turner II), 520 U.S. 180, 211, 117 under Renton, the county "must show S.Ct. 11745 137 L.Ed.2d 369 (1997) that in enacting the particular limitations (holding that in reviewing content-neutral ... it relied upon evidence permitting a regulations burdening speech under an reasonable inference that, absent such intermediate scrutinystandard, the limitations, the adult theaters would have question for the courts "is whether the harmful secondary effects." Id. at 1333 legislative conclusion was reasonable and (emphasis added). We then found that the supported by substantial evidence in the county had presented no evidence that a record before [the legislative body] ") single showing of an adult film would (emphasis added). have any of the harmful secondary effects on the community that the county had *7 The City argues that the original identified as the basis for the regulation. intent of section 12.70(C), adopted Id. pursuant to the Study, included a ban on more than one adult business in a Like the county in Tollis, Los Angeles building. This argument is unpersuasive. has presented no evidence that a Whether the prohibition against combination adult bookstore/arcade combination businesses was intended to produces any of the harmful secondary be included in the original ordinance is K sEARC WFSTDrrMWamed&wN -Unofficial Page 7 of 12- largely immaterial to the question of 163 F.3d at 551 ("In evaluating the whether the Study adequately justifies the secondary effects of adult entertainment, current regulations. the city is also permitted to rely on experiences of other jurisdictions."). Nor could Los Angeles have reasonably concluded that the expansion of an adult *8 Los Angeles relies on this ability to bookstore to include an adult arcade use foreign studies for the proposition would increase the frequency and that the 1983 amendments to section regularity of activity for the business and 12.70(C) are entitled to similar deference. heighten the probability that such activity If foreign studies can be used to justify would produce the harmful secondary the regulation of adult business, then effects identified in the Study. Such surely, the City argues, its regulations, reasoning would justify the prohibition of based upon its own study, are entitled to the simple expansion of a lone adult deference. Again, this argument misses bookstore in order to accommodate a the mark. That a legislative body may larger variety of adult products (which, rely on foreign studies to establish its ostensibly, would attract more patrons), interest in a regulation does not relieve and not for the purpose of installing an that entity from the obligation of arcade. Such a prohibition, however, is demonstrating that the study must be " clearly not supported by the Study. `reasonably believed to be relevant to the problem that the city addresses.' " The Supreme Court, as well as this Colacurcio, 163 F.3d at 551 (quoting circuit, have held that a legislative body Renton, 475 U.S. at 51-52). As shown, may rely on studies, conducted by other the Study fails this test. [FN7] cities and counties, linking a concentration of adult businesses to The City also points to decisions of our increased crime to justify its own sister circuits in support of its argument regulation of adult businesses. In Renton, that the Study provides the necessary the Court held that the city evidentiary basis to satisfy Renton's third was entitled to rely on the experiences prong. The cases cited, however, are of... other cities ... in enacting its adult either directly contrary to established theater zoning ordinance. The First Ninth Circuit precedent, or merely restate Amendment does not require a city, the requirement that a legislative body's before enacting such an ordinance, to reliance upon the evidence it cites must conduct new studies or produce be reasonable. See, e.g., Renton, 475 U.S. evidence independent of that already at 51-52. generated by other cities, so long as whatever evidence the city relies upon In ILQ Investments, Inc. v. City of is reasonably believed to be relevant to Rochester, 25 F.3d 1413 (8th Cir.1994), the problem that the city addresses. the Eighth Circuit upheld the 475 U.S. at 51-52; see also Colacurcio, constitutionality of an adult business x SEAR WESTDx► Wwned&wpa -Unofficial Page 8 of 12- zoning ordinance, as applied to adult upheld a Delaware statute setting closing bookstores, that prohibited on-premises hours for adult businesses and prohibiting viewing of adult movies or videotapes. closed viewing booths. The court cited to The court noted that Rochester relied on Renton and held that the state "need only foreign studies and held that under show that adult entertainment Renton, establishments as a class cause the Rochester need not prove that unwanted secondary effects the statute [plaintiffs' business] would likely have regulates." Id. at 138. This statement and the exact same adverse effects on its the Third Circuit's citation to Renton surroundings as the adult businesses pertain to whether the regulation is studied by [other cities]. So long as narrowly tailored, not whether the Ordinance No. 2590 affects only evidence produced can reasonably justify categories of businesses reasonably the regulation as serving a substantial believed to produce at least some of the government interest. Narrow tailoring of unwanted secondary effects, Rochester the Los Angeles ordinance is a question must be allowed a reasonable we need not address. opportunity to experiment with solutions to admittedly serious *9 Moreover, if the Third Circuit's problems. holding were applied to the issue before Id. at 1418 (internal quotation omitted). us, we would have to reject its analysis. While this application of Renton may be Merely requiring that a legislative body somewhat more flexible than the standard show that adult establishments as a class we announced in Tollis, Los Angeles's cause the secondary effects the regulation regulations would still fail under the is aimed at preventing could easily fall Eighth Circuit's analysis. The Los far short of our requirement in Tollis that Angeles Study examined concentrations a legislative body "must show that in of multiple adult business establishments; enacting the particular limitations ... it it did not study the impact of individual relied upon evidence permitting the establishments in any form, whether as reasonable inference that, absent such solitary units or as, part of the limitations, the adult [businesses] would concentration of businesses. Under the have harmful secondary effects." 827 Eighth Circuit's analysis, then, Los F.2d at 1333 (emphasis added). Angeles could not have reasonably believed, based on the Study, that an Finally, the City cites Hart Book Stores, individual adult business could produce Inc. v. Edmisten, 612 F.2d 821 (4th some of the secondary effects resulting Cir.1979), a case in which the Fourth from a concentration of businesses. Circuit examined a state law almost identical to the Los Angeles ordinance. In Mitchell v. Commission on Adult Hart held constitutional a North Carolina Entertainment Establishments, 10 F.3d statute prohibiting two or more "adult 123 (3rd Cir.1993), the Third Circuit establishments" from occupying a single K\R0EARRCMWESTDN n vTa -Unofficial Page 9 of 12- building. Adult bookstores and adult Circuit cited as the only evidence arcades were defined as separate produced by North Carolina to justify its establishments under the statute. statute. There is nothing in the case to indicate that the same type of behavior The Fourth Circuit found that the statute, that occurs in viewing booths in "on its face," was a "permissible combination bookstore/arcades would not regulation of the external costs of adult occur in an establishment that only establishments that is unrelated to the furnishes an arcade. Therefore, any overall suppression of any protected inference that, absent the statute, the materials offered by them for public harmful affects would be ameliorated consumption." Id. at 829. In concluding would be unreasonable under both Tollis that the statute served a substantial and Acorn. government interest, the court noted that no formal legislative history existed for *10 The decision of the district court is the statute, but held that a legislative AFFIRMED. determination that the dispersal of the marketing activities of the businesses FN 1. The Study also stated there might ameliorate adverse secondary was "some basis to conclude" that effects "cannot be thought unreasonable." property values in the study areas Id. at 828. increased to a lesser degree than in the control areas. It concluded, Hart was decided before Renton; however, that the concentration of therefore, there may be some doubt that it adult businesses was not the would survive scrutiny under the current primary cause o f this Supreme Court's precedent. We are sure, phenomenon. however, that the case would not pass muster under our decisions in Tollis and FN2. Colacurcio involved Acorn. In Hart, there was no evidence expressive conduct, which is not from foreign studies to support the at issue here. The Supreme Court, statute. What evidence the court did cite however, has noted that the test as being produced by the state--a report for regulations affecting on health conditions, inside the video expressive conduct is nearly viewing booths that the bill's sponsor identical to the test for time, place, read to a legislative committee, see id. at or manner regulations affecting 828 n. 9-- would not meet Tollis `s protected speech. See Clark v. reasonable inference requirement. Community for Creative Non- Violence, 468 U.S. 288, 298, 104 Prohibiting arcades and adult bookstores S.Ct. 3065, 82 L.Ed.2d 221 (1984) from being located in the same building ("[V]alidating a regulation of would not prevent the type of unhealthy expressive conduct ... in the last conditions in the booths that the Fourth analysis is little, if any, different KARESEARCH\WESTDM,DWmrw&wpd -Unofficial Page 10 of 12- from the standard applied to time, (holding that "[t]he County has place or manner restrictions."). thus failed to show that the Consequently, in Colacurcio we ordinance, as interpreted by the looked to Ward, a case involving County ... is sufficiently `narrowly restrictions impacting on speech tailored' to affect only that per se (and not expressive category of theatres shown to conduct), for guidance. See also produce the unwanted secondary Colacurcio, 163 F.3d at 551, n. 4 effects") (quoting Renton, 475 (quoting Clark and noting that the U.S. at 51). Ninth Circuit frequently cites both the test for expressive conduct and FN4. As discussed above, because that for time, place or manner the Tollis and Colacurcio tests are regulations when analyzing identical, the standards applied to r e g u l a t i o n s o f a d u l t one may be applied to another. entertainment). FN5. The district court conducted FN3. We note that in Colacurcio its analysis using a slightly we held that the regulation must different approach that, though serve a "significant" government perfectly reasonable, - somewhat interest, see 163 F.3d at 551, while conflated the inquiries under in Tollis we held that the Tollis `s second and third steps. government interest must be We need not specifically endorse "substantial." 827 F.2d at 1332. this analysis, as section 12.70(C) We accord no substantive fails to satisfy the second step of difference to these terms as they Colacurcio (i.e. the third step of are used in the adult zoning Tollis.) See Cline v. The Indus. context. Indeed, the language in Maintenance Eng'g and Contract Tollis was taken from our decision Co., 200 F.3d 1223, 1229 (9th in Walnut Properties, Inc. v. City Cir.2000) ("Summary judgment of Whittier, 808 F.2d 1331, 1334- may be affirmed on any ground 35 (9th Cir.1986), which was cited supported in the record, including with approval in Colacurcio. See reasons not relied upon by the 163 F.3d at 551 n. 4. Additionally, district court."). Tollis did not explicitly include the narrow tailoring requirement FN6. It is well-established that the as part of its third step. That Tollis burden of proof is on the City to requires the regulation must be justify a regulation which burdens "narrowly tailored" to serve a the freedom of expression. See, substantial government interest is, e.g., Clark v. Community for however, clear from the opinion. Creative Nonviolence, 468 U.S. See Tollis, 827 F.2d at 1333 288, 293 n. 5, 104 S.Ct. 3065, 82 K senxcenWUMNt.nWwned&*pa -Unofficial Page 11 of 12- L.Ed.2d 221 (1984) ("[I]t is combination is hardly of the "same common to place the burden upon character" as a grouping of the Government to justify multiple adult business impingements on First establishments in a given Amendment interests"); Lim V. geographical area. City of Long Beach, 2000 WL 821295, at *2 (9th Cir. Jun.27, END of DOCUMENT 2000) (noting that it is "clear" that the burden of proving alternative avenues of communication rests on the government); Tollis, 827 F.2d at 1333 ("The County must show that in the enacting particular limitations ... it relied upon evidence permitting the reasonable inference that, absent such limitations, the adult theaters would have harmful secondary effects." (emphasis added)). FN7. In this regard, the Supreme Court's recent opinion in City of Erie v. Pap's A.M., --- U.S. ----, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), is of little aid to Los Angeles. In upholding the City of Erie's ban on nude dancing, the Court stated that "Erie could reasonably rely on the evidentiary foundation set forth in Renton and American Mini Theatres " with respect to the secondary effects of adult entertainment establishments because the nude dancing that claimed protection was "of the same character as the adult entertainment at issue" in the two cases. Id. at 1395. For the purposes of the secondary effects identified in the Los Angeles Study, a solitary bookstore/arcade KUtFsFARCMWESTDNLDWanxaa,pa -Unofficial Page 12 of 12-