Chapter 5.16
ADULT ORIENTED BUSINESSES

5.16.000    Chapter Contents

Sections:

5.16.010    Purpose.

5.16.020    Scope.

5.16.030    Definitions.

5.16.040    License required.

5.16.050    License prohibited to certain persons.

5.16.060    Application for license.

5.16.070    Investigation and application.

5.16.080    Issuance of licenses.

5.16.090    Appeal.

5.16.100    License Term - Assignment - Renewals.

5.16.110    Building and operation specifications –Adult cabarets.

5.16.120    Standards of conduct and operation applicable to adult oriented businesses

5.16.130    Regulations applicable to adult arcades, adult bookstores, adult motion picture theaters and other adult oriented businesses.

5.16.140    Regulations applicable to video stores not qualifying as adult oriented businesses.

5.16.150    Dramatic works and obscenity.

5.16.160    Inspections.

5.16.170    Hours of operation.

5.16.180    Record keeping requirements.

5.16.190    Suspension or revocation of licenses and appeal procedure.

5.16.200    Suspension or revocation of license - Duration.

5.16.210    Signs.

5.16.220    Violations -- Misdemeanor -- Gross Misdemeanor -- Civil Infraction.

5.16.230    Public nuisance declared.

5.16.010 Purpose

It is the intended purpose of this chapter to establish reasonable regulations through licensing of adult oriented businesses, as defined herein, with the goal that criminal activity and antisocial activity not protected by the United States Constitution which is typically committed in conjunction with the operation of adult oriented businesses be prevented. It is not the purpose of this ordinance to prohibit or improperly curtail expression protected by the Washington State Constitution and the United States Constitution or to curtail activity or conditions which, although disapproved of by many, do not endanger the public health, safety, and welfare.

(Ord. 5663 §2, 1997).

5.16.020 Scope

This chapter is intended to apply to the licensing and operation of adult oriented businesses in the City. Provisions governing the location and setting of such businesses is governed by zoning regulations contained in the City of Olympia Unified Development Code. Lewd acts and the display of erotic material in public places generally are covered by Chapter 9.24 of the Olympia Municipal Code, Offenses Against Public Decency.

(Ord. 5663 §2, 1997).

5.16.030 Definitions

For the purposes of this ordinance the terms listed below have the following definitions:

A.    “Adult oriented business” (AOB) shall mean the following businesses:

1.    Adult arcade. An establishment containing any individual viewing areas or booths, where, for any form of consideration, including a membership fee, one or more still or motion picture projectors, slide projectors, or similar machines, or other image producing machines are used to show films, motion pictures, video cassettes, slides, or other photographic reproduction of sexual conduct, or adult entertainment.

2.    Adult cabaret. A night club, bar, restaurant, theater, or auditorium, or similar commercial establishment, whether or not alcoholic beverages are served, which presents adult entertainment.

3.    Adult motel. A hotel, motel, or similar commercial establishment which:

a.    Offers sleeping accommodation to the public for any form of consideration and, as a significant purpose of its business, provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction of or description of sexual conduct or adult entertainment and are not rated G, PG, PG-13, NC-13, NC-17, or R by the Motion Picture Association of America; or

b.    Offers a sleeping room for rent for a period of time that is less than ten (10) hours; or

c.    Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten (10) hours.

4.    Adult motion picture theater. A commercial establishment or drive-in theater where a significant portion of the films, motion pictures, video cassettes, slides, or similar photographic reproductions are characterized by the depiction or description of adult entertainment or sexual conduct and are not rated G, PG, PG-13, NC-13, NC-17, or R by the Motion Picture Association of America and are shown for any form of consideration.

5.    Adult book store. A business having a significant portion of its volume of trade the display, barter, rental and/or sale of books, printed matter, video tapes, discs or cassettes, films, pictures or other material or paraphernalia distinguished or characterized by an emphasis on matters depicting, describing or relating to sexual conduct or adult entertainment, as defined herein. For purposes of this ordinance, “portion of its volume or trade” means that portion of the store’s display space devoted to such material, or that portion of its gross receipts received from the sale of such material, whichever is greater.

6.    Other adult entertainment facility. Any commercial establishment to which any patron is invited or admitted and where adult entertainment is presented as a substantial part of the premises activity, including but not limited to escort agencies, seminude or nude modeling studios, or similar establishments.

B.    Adult cabaret performance area. That portion of an adult cabaret comprising of the live entertainment stage and an area external to the stage six (6) feet in all directions.

C.    Adult entertainment.

1.    Any exhibition, performance, or dance of any type conducted in a premises where such exhibition, performance, or dance involves a person who is unclothed or in such costume, attire, or clothing as to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva, or genitals, or human male genitals in a discernibly turgid state, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva, or genitals, or human male genitals in a discernibly turgid state, even if completely opaquely covered; or

2.    Any exhibition, performance, or dance of any type conducted in a premises where such exhibition, performance, or dance is distinguished or characterized by a predominant emphasis on the depiction, description, simulation of, or relation to, the following specified sexual activities:

a.    Human genitals in a state of sexual stimulation or arousal;

b.    Acts of human masturbation, sexual intercourse, or sodomy; or

c.    Fondling or other erotic touching of human genitals, pubic region, buttocks or female breast; provided, adult entertainment and specifically the “depiction, description, simulation of, or relation to” sexual activities described above, shall not be construed to include any form of actual sexual conduct as defined in this section.

3.    Any exhibition, performance, or dance intended to sexually stimulate any patron and conducted in a premises where such exhibition, performance, or dance is performed for, arranged with, or engaged in with fewer than all patrons on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance exhibition or dance. For purposes of example and not limitation, such exhibitions, performances, or dances are commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing, or straddle dancing.

D.    Entertainer. Any person who provides live adult entertainment in an adult oriented business, whether or not he/she is an employee of the business and whether or not a fee is charged or accepted for such entertainment, and whether or not nude, seminude, or clothed.

E.    Employee. Any and all persons, including managers, entertainers, independent contractors, renters, lessees, or sublessees who work in or at or render any services directly related to the operation of any adult oriented business whether or not any such person is paid compensation by the operator of said business.

F.    City. City of Olympia, Washington.

G.    Director. City of Olympia’s Director of Administrative Services, or designee.

H.    Manager. Any person who manages, directs, administers, or is in charge or the affairs and/or the conduct of an adult oriented business.

I.    Operator. The owner, significant stockholder, or significant owner of interest, permit holder, custodian, manager, or person in charge of any permits or licenses for adult oriented business.

J.    Person. Any individual, firm, joint venture, copartnership, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver, or any other group or a combination acting as a unit.

K.    Nude. The appearance or less than complete and opaque covering of the human anus, male genitals, female genitals, or the areola or nipple of the female breast. The opaque covering shall be made of material or fabric, but shall not include any liquid substance, including mud, water, lotion, whipping cream, or other such substances that are easily broken down or removed and do not offer the covering intended for an “opaque covering.”

L.    Seminude. A state of dress in which clothing completely and opaquely covers only the genitals, pubic region, and areola and nipple of the female breast, as well as portions of the body covered by supporting straps or devices.

M.    Sexual conduct.

1.    Sexual intercourse within its ordinary meaning, occurring upon any penetration, however slight; or

2.    Any penetration of the vagina or anus, however slight, by an object; or

3.    Any contact between persons involving the sex organs of one person and the mouth or anus of another; or

4.    Masturbation, manual or instrumental, of oneself or of one person by another; or

5.    Direct touching of the sex organs or anus, whether clothed or unclothed, of oneself or of one person by another; or

6.    Flagellation or torture in the context of a sexual relationship; or

7.    Sodomy.

(Ord. 7003 §4, 2016; Ord. 6043 §1, 2000; Ord. 5671 §4, 1997; Ord. 5663 §2, 1997).

5.16.040 License required

A.    It is unlawful for any person to conduct, manage, or operate an adult oriented business unless such person is the holder of a valid license from the City to do so, obtained in the manner provided in this chapter.

B.    It is unlawful for any entertainer, employee, or manager to knowingly work in or about or to knowingly perform any service or entertainment directly related to the operation of an unlicensed adult oriented business.

C.    It is unlawful for any entertainer to perform in an adult oriented business unless such person is the holder of a valid license from the City to do so.

D.    It is unlawful for any manager to work in an adult oriented business unless such person is the holder of a valid license from the City to do so. It is unlawful for any owner or manager to allow any entertainer to perform in an adult oriented business without a valid license from the city to do so.

(Ord. 7003 §5, 2016; Ord. 5663 §2, 1997).

5.16.050 License prohibited to certain persons

No license shall be issued to:

A.    A natural person who has not attained the age of 21 years, except that licenses may be issued to persons who have attained the age of 18 years with respect to adult cabarets or adult book stores or motion picture theaters where no intoxicating liquors are served or provided.

B.    A person whose place of business is operated by a manager or agent, unless such manager or agent possesses the same qualifications required of the licensee, or in the case of a manager of an adult cabaret/theater, the manager has obtained a manager’s license.

C.    A copartnership, unless all the members thereof are qualified to obtain a license as provided in this chapter. Such license shall be issued to the manager or agent thereof.

D.    A corporation, unless all the officers and directors thereof are qualified to obtain a license as provided herein. Such license shall be issued to the manager or agent thereof.

(Ord. 5663 §2, 1997).

5.16.060 Application for license

A.    Adult oriented business. Any application for an adult oriented business shall be made on a form provided by the Director and shall contain the following information and be accompanied by the following documents, which shall be submitted to the Director:

1.    If the applicant is:

a.    An individual/sole proprietor, the individual/owner shall state his/her legal name and any aliases, stage names, or previous names, date of birth, and social security number and submit satisfactory proof that he/she is eighteen (18) years or twenty-one (21) years of age or older, whichever is applicable.

b.    A partnership, the partnership shall state its complete name, and the legal names of all partners, including their dates of birth, social security numbers, and whether the partnership is general or limited, and a copy of the partnership agreement, if any.

c.    A corporation, including a limited liability organization, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of the State of Washington, the legal names, dates of birth, social security numbers of all directors, or principal stockholders, and the capacity of all officers, directors, and principal stockholders; the name of the registered corporate agent, and the address of the registered officer for service of process.

d.    As part of the application process, each officer, director, or principal stockholder, as defined above, shall provide the Director with an affidavit attesting to their identity and relationship to the corporation. Principal stockholder shall mean those persons who own ten percent (10%) or greater interest in the adult entertainment facility.

2.    Whether the applicant or any other individuals listed pursuant to Subsection A.(1)(a), (b), and (c) above within a four (4) year period immediately preceding the date of the application has been convicted of a crime and, if so, the specific criminal act involved, the date of conviction and the place of conviction.

3.    Whether the applicant or any of the other individuals listed pursuant to this section has, within the last four (4) years, had a previous permit or license under this chapter or other similar ordinances from another city or county denied, suspended, or revoked, including the name and location of the adult facility for which the permit or license was denied, suspended, or revoked, the entity denying the same, as well as the date of the denial, suspension, or revocation.

4.    Whether the applicant or any other entity listed pursuant to this section holds any other permits and/or licenses under this chapter, or other similar adult oriented business, including a sexually oriented business license from another city or county, and if so, the names and locations of such other permitted businesses.

5.    The classification of license for which the applicant is filing.

6.    The location of the proposed adult oriented business, including a legal description of the property, street address, and telephone number(s), if any.

7.    The applicant’s valid mailing address and residential address, phone number and email address.

8.    Two (2) two-inch by two-inch color photographs of the applicant, including any corporate applicants, taken within six (6) months of the date of the application, showing only the full face of the same. The photographs shall be provided at the applicant’s expense. The license, when issued, shall have affixed to it one such photograph of the applicant.

9.    The applicant and/or each corporate applicant’s driver’s license number, social security number, and/or his/her state or federally issued tax identification number.

10.    Each application shall be accompanied by a complete set of fingerprints of each person required to be a party to the application, including all corporate applicants as defined above, utilizing fingerprint forms as prescribed by the Chief of Police or his/her designee. A designee may include a contracted third party entity.

11.    In the case of all adult oriented businesses, a sketch or diagram must be professionally prepared and submitted to and accepted by the City, and it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six (6) inches.

12.    Applicants for a license under this chapter shall have a continuing duty to promptly supplement application information required in the event that said information changes in any way from what is stated on the application. The failure to comply with said continuing duty within thirty (30) days from the date of such change by supplementing the application on file with the Director or his/her designee, shall be grounds for suspension of a license.

13.    In the event the Director or his/her designee determines or learns at any time that the applicant has improperly completed the application for a proposed adult oriented business permit or license, he/she shall promptly notify the applicant of such fact and allow the applicant ten (10) days to properly complete the application. (The time period for granting or denying a permit shall be stayed during the period in which the applicant is allowed an opportunity to properly complete the application.)

14.    The applicant must be qualified according to the provisions of this section, and the premises must be inspected and found to be in compliance with health, fire, and building codes of the City.

15.    The applicant shall be required to pay a nonrefundable initial application fee of $2,400.00 and an annual application fee of $750.00. In addition, applicants shall also be responsible for background check fees.

16.    The fact that a person possesses other types of state or city permits and/or licenses does not exempt him/her from the requirement of obtaining an adult oriented business permit.

17.    The application form for licenses and permits issued under this chapter shall contain a provision providing that under penalty of perjury the applicant verifies that the information contained therein is true to the best of his/her knowledge.

B.    Adult Cabaret Manager and Entertainer Licenses.

1.    No person shall work as a manager, assistant manager, or entertainer at an adult cabaret without an entertainer’s or manager’s license from the City. Each applicant for a manager’s or entertainer’s license shall complete an application or forms provided by the Director containing the information identified below and submit same to the Director. A nonrefundable application fee of $150.00 shall accompany the application. In addition, applicants shall also be responsible for background check fees. A copy of the application shall be provided to the police department for its review, investigation, and recommendation. All applications for a manager’s or entertainer’s license shall be signed by the applicant and certified to be true under penalty of perjury. The manager’s or entertainer’s license application shall require the following information:

a.    The applicant’s name, home address, home telephone number, date and place of birth, social security number, and any stage names or nicknames used in entertaining.

b.    The name and address of each business at which the applicant intends to work.

c.    Documentation that the applicant has attained the age of eighteen (18) or twenty-one (21) years, whichever is applicable. Any two of the following shall be accepted as documentation of age:

i.    A motor vehicle operator’s license issued by any state bearing the applicant’s photograph and date of birth;

ii.    A state issued identification card bearing the applicant’s photograph and date of birth;

iii.    An official passport issued by the United States of America;

iv.    An immigration card issued by the United States of America;

v.    Any other identification that the City determines to be acceptable.

d.    A complete statement of all convictions of the applicant for any misdemeanor or felony violations in this or any other city, county, or state within five (5) years immediately preceding the date of the application, except parking violations or minor traffic infractions.

e.    A description of the applicant’s principal activities or services to be rendered.

f.    Two two-inch by two-inch color photographs of applicant, taken within six (6) months of the date of application showing only the full face.

g.    Authorization for the City, its agents, and employees to investigate and confirm any statements set forth in the application.

h.    For managers and assistant managers, fingerprints shall be provided as prescribed by the Olympia Police Department or designee. A designee may include a contracted third party entity.

2.    Every adult entertainer shall provide his or her license to the adult cabaret manager on duty on the premises prior to his or her performance. The manager shall retain the licenses of the adult entertainers readily available for inspection by the City at any time during the hours that the entertainer is performing. The license shall be returned to the entertainer at the end of the entertainer’s shift.

3.    The Director may request additional information or clarification when necessary to determine compliance with this chapter.

4.    The application form for licenses and permits issued under this chapter shall contain a provision providing that under penalty of perjury the applicant verifies that the information contained therein is true to the best of his/her knowledge.

(Ord. 7003 §6, 2016; Ord. 6894 §2, 2014; Ord. 5663 §2, 1997).

5.16.070 Investigation and application

A.    Upon receipt of an application properly filed with the Director, and upon payment of the nonrefundable license fee, the Director or his/her designee shall immediately stamp the application as received and shall immediately thereafter send copies of the application to the city departments or other agencies responsible for enforcement of health, fire, criminal, and building codes and laws. Each department or agency shall promptly conduct an investigation of the application and the proposed adult oriented business. For owners, managers and assistant managers, the Police Department shall seek criminal history background information from Washington State and other states and may accept a reliable FBI criminal history provided by an applicant if authorized by the Director. For entertainers, the Olympia Police Department will review publicly available criminal history background information from Washington State and may require additional criminal background information if determined appropriate. At the conclusion of its investigation, each department or agency shall indicate on the copy of the application its recommendation as to approval or disapproval of the application, date it, sign it, and in the event it recommends disapproval, state the specific reasons therefor, citing applicable laws or regulations.

B.    A department or agency shall recommend disapproval of an application if it finds that the proposed adult oriented business will be in violation of any provision of any statute, code, ordinance, regulation, or other law in effect in the City, or if the applicant does not meet the conditions as specified in this chapter. After its indication of approval or disapproval, each department or agency shall immediately return the copy of the application to the Director or his/her designee.

(Ord. 7003 §7, 2016; Ord. 6894 §3, 2014; Ord. 5663 §2, 1997).

5.16.080 Issuance of licenses

A.    Adult oriented business license. The Director shall grant or deny an application for an adult oriented business within thirty (30) days from the date of its filing unless the City or applicant establishes a good reason for up to a thirty (30) day extension. The Director shall grant the application unless one or more of the criteria set forth below is present. The license, if granted, shall state on its face the name of the person(s) to whom it is granted, the expiration date, and the name and address of the adult oriented business. The license shall be posted in a conspicuous place, at or near the entrance to the adult oriented business, so that it can be easily read at any time. The license shall be valid for one year after which it was granted. The City may also conditionally approve the license, subject to the City’s additional investigation as to whether the applicant meets the criteria set forth below. The Director shall deny an application for an adult oriented business for any of the following reasons:

1.    An applicant is under eighteen (18) or twenty-one (21) years of age or will be employing a person under eighteen (18) or twenty-one (21) years of age, whichever is applicable under Section 5.16.050 of this chapter.

2.    An applicant is overdue on his/her payment to the City of taxes, fees, fines, assessments, or penalties assessed against him/her or imposed upon him/her in relation to an adult oriented business.

3.    An applicant has failed to provide information required by this chapter for application for the license, or has falsely answered a question or request for information on the application form.

4.    The applicant has failed to comply with any provision or requirement of this chapter.

5.    The applicant has failed to comply with any city codes or zoning regulations, or other state or federal regulations or court order applicable to an adult oriented business.

6.    The applicant has been convicted of a felony involving adult oriented businesses including, but not limited to, prostitution, promoting prostitution, violation of RCW 9A.40.100 and RCW 9.68A.100-103, and/or controlled substances as that term is defined in Chapter 69.50 RCW, within the last ten (10) years.

B.    Adult cabaret managers or adult entertainer’s license.

1.    An adult cabaret manager’s or entertainer’s license shall be issued by the Director within thirty (30) days from the date the complete application and fee are received unless the Director determines that the applicant has failed to provide all information required to be supplied according to this chapter, has made any false, misleading, or fraudulent statement of material fact in the application, or has failed to meet any of the requirements for issuance of a license under this chapter. The Director may extend the application review time for an additional twenty (20) days if more time is needed for investigation. If the Director determines that the applicant has failed to qualify for the license applied for, the Director shall deny the application in writing and shall cite the specific reasons therefor, including applicable laws. An adult cabaret manager and entertainer’s license shall be denied for the same reasons that are set forth in subsection A of this section.

2.    If the Director has failed to approve or deny an application for an adult cabaret manager’s license within thirty (30) days of filing a complete application, the Director may conditionally approve the license, subject to the City’s additional investigation as to whether the applicant meets the criteria set forth below.

3.    An applicant for an adult entertainer’s license shall be issued a temporary license upon receipt of a complete license application and fee. Said temporary license will automatically expire on the thirtieth (30th) day following the filing of the complete application and fee, unless the Director has failed to approve or deny the license application in which case the temporary license shall be valid until the Director approves or denies the application, or until the final determination of any appeal from a denial of the application.

(Ord. 7003 §8, 2016; Ord. 6894 §4, 2014; Ord. 5663 §2, 1997).

5.16.090 Appeal

A.    Denial of license. Any person aggrieved by the action of the Director in refusing to issue or renew any license issued under this chapter shall have the right to appeal such action to the Hearing Examiner, or to such other hearing body as may hereafter be established by the City Council for the hearing of license appeals, by filing a notice of appeal with the Director within ten (10) days of notice of the refusal to issue or renew. The Hearing Examiner or other hearing body shall set a date for the open record hearing on such appeal, to take place within forty-five (45) days of the date of receipt of the notice of appeal. At such hearing the appellant and other interested persons may appear and be heard, subject to rules and regulations of the Hearing Examiner or other hearing body. The Hearing Examiner shall uphold the Director’s decision unless it finds the decision is not supported by substantial evidence . The Hearing Examiner or other hearing body shall render its decision on the appeal within fifteen (15) days following the close of the appeal hearing.

B.    Appeal to Superior Court. Any person aggrieved by the decision of the Hearing Examiner or hearing body may appeal to the Superior Court as authorized by law.

(Ord. 6894 §5, 2014; Ord. 5663 §2, 1997).

5.16.100 License term –Assignment –Renewals

A.    All licenses shall expire one year after the license was granted. Licenses issued under this chapter shall not be assignable.

B.    Application for renewal of licenses issued hereunder shall be made to the Director no later than thirty (30) days prior to the expiration of adult oriented business licenses, and no later than fourteen (14) days prior to the expiration of adult cabaret manager and entertainer licenses. The renewal license shall be considered and issued in the same manner and on payment of the same fees as for an original application under this chapter.

C.    The Director shall renew a license upon application unless the Director is aware of facts that would disqualify the applicant from being issued the license for which he or she seeks renewal, and further provided that application complies with all provisions of this chapter as now enacted or as the same may hereafter be amended.

(Ord. 7003 §9, 2016; Ord. 5663 §2, 1997).

5.16.110 Building and operation specifications –Adult cabarets

A.    Separation of Adult Entertainment Performance Area. The live entertainment stage shall be a platform at least twenty four (24) inches in elevation above the level of the patron seating areas, and shall be separated by a distance of at least six (6) feet from all areas of the premises to which patrons have access. A continuous fixed barrier railing, of sufficient construction to prevent encroachment by patrons into the adult cabaret performance area, shall be installed and maintained at least three (3) feet in height and be located on the perimeter of the performance area.

B.    Lighting. Sufficient lighting shall be provided and equally distributed in and about the parts of the premises which are open to and used by patrons so that all objects are plainly visible at all times, and that on any part of the premises which are open to and used by patrons a program, menu, or list printed in 8 point type will be readable by the human eye with 20/20 vision from two (2) feet away.

C.    Submittal of Plans. Building plans and lighting calculations showing conformance with the requirements of this section shall be included with any license application for an adult oriented business that features adult entertainment. Building plans must be in compliance with all building, planning, and other applicable state, local, and federal regulations.

D.    All areas of an adult cabaret/theater which are open to the public shall be visible from a manager’s station and shall not be obscured by any curtain, door, wall, or other enclosure.

(Ord. 7003 §10, 2016; Ord. 5663 §2, 1997).

5.16.120 Standards of conduct and operation applicable to adult oriented businesses

A.    Standards for Patrons, Employees, Entertainers. The following standards of conduct must be adhered to by patrons, entertainers, and/or employees of adult cabarets or of other adult oriented businesses at any time adult entertainment is provided.

1.    No manager, employee, or entertainer may engage in adult entertainment, except for that described in Section 5.16.030(C)(3), on any part of an adult cabaret unless performed on the live entertainment stage as described in Section 5.16.110(A) above and removed at least six (6) feet from the nearest patron.

2.    No patron or customer shall go into or upon the adult cabaret performance area at any time adult entertainment is being performed on the stage therein.

3.    No member of the public, manager, employee or entertainer shall allow, encourage, or knowingly permit any person(s) upon the premises to touch, caress, or fondle the breasts, buttocks, anus, pubic area, or genitals of themselves or another, whether or not the person(s) is clothed.

4.    No member of the public, manager, employee, or entertainer shall allow, encourage, or permit physical contact between an employee or entertainer and any member of the public, whether or not the person(s) is clothed.

5.    No person shall perform any act of sexual conduct as defined in this chapter.

6.    No manager, employee, or entertainer shall use artificial devices or inanimate objects to depict any of the prohibited activities described in this subsection.

7.    No entertainer shall be visible from any public place outside the premises during the actual or apparent hours of his/her employment or performance on the premises.

8.    No manager, entertainer, or other employee employed or otherwise working at an adult oriented business shall solicit, demand, accept, or receive either directly or indirectly any gratuity or other payment from a patron, customer, or member of the public except an initial entrance fee or except as provided below.

9.    It is unlawful for any manager, entertainer, employee, or wait person to perform more than one such function at an adult cabaret on the same business day.

10.    No manager, employee, or entertainer mingling with or performing for patrons, except on the live entertainment stage, shall be unclothed or in less than opaque and complete attire, costume, or clothing so as to expose to view any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva, or genitals, nor shall any male employee or entertainer at any time appear with his genitals in a discernibly turgid state, even if completely or opaquely covered, or wear or use any device or covering which simulates the same.

11.    No manager, employee, or entertainer shall sit on a patron’s lap or separate a patron’s legs.

12.    When not performing, entertainers are prohibited from being present in areas of the establishment that are open to the patrons on the establishment. This shall be only during working hours. Entertainers are required to use separate rest room facilities.

13.    At least two signs in English, of sufficient size to be readable with 20/20 vision at twenty (20) feet shall be conspicuously displayed in the public area of the establishment stating the following:

THIS ADULT CABARET OR ADULT THEATER IS REGULATED BY THE CITY OF OLYMPIA. ENTERTAINERS ARE:

a. Not permitted to engage in any type of sexual conduct;

b. Not permitted to appear nude or seminude except on stage;

c. Not permitted to accept tips or gratuities directly or in advance of their performance.

14.    No manager, employee, or entertainer mingling with patrons shall conduct any dance, performance, or exhibition, including but not limited to that described in 5.16.030(C)(3), unless that dance, performance, or exhibition is performed at a torso-to-torso distance of no less than four (4) feet from the patron(s) for whom dance, performance, or exhibition is performed.

15.    No tip or gratuity offered to or accepted by an entertainer may be offered or accepted prior to any performance, dance, or exhibition provided by the entertainer. No entertainer performing upon any stage area shall be permitted to accept any form of gratuity offered directly to the entertainer by any patron. Any gratuity offered to any entertainer performing upon any stage area must be placed into a receptacle provided for receipt of gratuities by an adult oriented business or provided through a manager on duty on the premises. Any gratuity or tip offered to any adult entertainer conducting any performance, dance, or exhibition, outside the adult entertainment performance area of the adult cabaret shall be placed only into a receptacle provided by the entertainer, and not upon the person or into the clothing of the entertainer.

16.    There must be at least one manager who is not an entertainer on duty and situated in any public area at all times that any patron, member, or customer is present inside the premises.

17.    Doors to areas on the premises which are available for use by persons other than the owner, manager, operator, or their agents or employees may not be locked during business hours.

18.    No person may operate or maintain any warning system or device, of any nature or kind, for the purpose of warning or aiding and abetting the warning of patrons, members, customers, or any other persons that police officers or health, fire, or building inspectors are approaching or have entered the premises.

19.    Admission must be restricted to persons of the age of eighteen (18) years or more pursuant to RCW 9.10A.150; and the identification of all patrons must be checked by the employees of the premises.

(Ord. 7003 §11, 2016; Ord. 5663 §2, 1997).

5.16.130 Regulations applicable to adult arcades, adult bookstores, adult motion picture theaters and other adult oriented businesses

All adult arcades, adult bookstores, adult motion picture theaters, and other adult oriented businesses having facilities for customer viewing of depiction of human nudity and/or sexual conduct as herein defined, shall comply with the following regulations:

A.    Construction/Maintenance:

1.    All viewing booths shall be constructed or reconstructed so that the interior of the viewing booth is observable by persons in the aisles or other open areas of the establishment and the lower 36" of the door shall be open to public view.

2.    All such areas shall be maintained in a clean and sanitary condition at all times.

B.    Signs. Signs shall be conspicuously posted on the premises advising customers using viewing booths that:

1.    Masturbation in such booths is prohibited and unlawful.

2.    That it is unlawful for more than one (1) customer to occupy a viewing booth at any time.

3.    There shall be no physical contact between patrons and employees.

4.    Violations are subject to criminal prosecution.

C.    Unlawful conduct. The following conduct or activity is unlawful within any adult bookstore, adult arcade, adult motion picture theater or other adult oriented businesses:

1.    Masturbation or sexual conduct within or without viewing booths.

2.    Two (2) or more customers in a viewing booth at the same time.

3.    Physical contact between patrons and employees.

4.    For the owner or manager to knowingly allow the above conduct.

5.    Noncompliance with any other regulation set forth in this chapter.

D.    All areas shall be maintained at all times with sufficient lighting so that all objects are plainly visible at all times or listed printed in 8-point type will be readable by the human eye with 20/20 vision from two (2) feet away.

E.    Rest rooms may not contain video recording equipment.

F.    No steps or risers are allowed in any adult arcade booth or station.

G.    No adult arcade station or booth shall have more than one stool type seat. In order to prevent obscuring the occupant of an adult arcade station or booth from view, no stool for seating within an adult arcade station or booth shall have any seat back or sides.

H.    All ventilation devices between the adult arcade booths must be covered by a permanently affixed ventilation cover. Ventilation holes may only be located one (1) foot from the top of the booth walls or one (1) foot from the bottom of the booth walls. There may not be any other holes or openings in the booths.

I.    No person may operate any kind of warning device or system for the purpose of warning or aiding or abetting the warning of any patron, employee or other persons that the police, health, fire, or building inspector or other public officials are approaching or entering the premises.

J.    The licensee shall not permit any doors to public areas on the premises to be locked during business hours, in violation of the applicable provisions of the Olympia Building Code, Uniform Fire Code, and National Fire Protection Association Code.

(Ord. 7003 §12, 2016; Ord. 5663 §2, 1997).

5.16.140 Regulations applicable to video stores not qualifying as adult oriented businesses

Video stores that sell or otherwise distribute films, motion pictures, video cassettes, slides, or other visual representations which are characterized by the depiction or description of adult entertainment or sexual conduct, and less than ten percent (10%) of their stock-in-trade or revenues comes from the rental or sale of such items shall be subject to the following regulations:

A.    All such items as are described above shall be physically segregated and closed off from other portions of the store such that these items are not visible and/or accessible from other portions of the store.

B.    No advertising for such items shall be posted or otherwise visible, except where such items are authorized for display.

C.    Signs readable at a distance of twenty (20) feet in both English and Spanish shall be posted at the entrance to the area where such items are displayed.

D.    The manager or attendant shall take reasonable steps to monitor the area where such items are displayed to ensure that person under eighteen (18) years of age do not access the age-restricted area.

E.    Rental or sale of obscene material (as defined by state law) or material harmful to minors (as defined by state law) to persons under eighteen (18) years of age is prohibited.

F.    Employees of such video stores shall check identification of persons appearing to be eighteen (18) or under to ensure that such items are not rented or sold to persons under the age of eighteen.

(Ord. 5663 §2, 1997).

5.16.150 Dramatic works and obscenity

A.    This chapter shall not be construed to prohibit:

1.    Plays, operas, musicals, or other dramatic works that are not obscene;

2.    Classes, seminars, and lectures which are held for serious scientific or educational purposes and which are not obscene; or

3.    Exhibitions, performances, expressions, or dances that are not obscene.

B.    Whether or not activity is obscene shall be judged by consideration of the following factors:

1.    Whether the average person, applying contemporary community standards, would find that the activity taken as a whole appeals to a prurient interest in sex; and

2.    Whether the activity depicts or describes in a patently offensive way, as measured against community standards, sexual conduct as described in RCW 7.48A.010(2)(b); and

3.    Whether the activity taken as a whole lacks serious literary, artistic, political, or scientific value.

(Ord. 5663 §2, 1997).

5.16.160 Inspections

A.    All books and records required to be kept pursuant to this chapter shall be open to inspection by the Police Chief of the City of Olympia, or designee, during the hours when the licensed premises is open for business upon two (2) days’ written notice to the licensee. The purpose of such inspection shall be to determine if the books and records meet the requirements of this chapter.

B.    The licensed premises shall be (as an implied condition of receiving an AOB license) open to inspection by the Police Chief during the hours which the adult oriented business premises is open for business. The purpose of such inspection shall be to determine if the licensed premises is operated in accordance with the requirements of this chapter. It is hereby expressly declared that unannounced inspections are necessary to ensure compliance with this chapter.

(Ord. 7003 §13, 2016; Ord. 5663 §2, 1997).

5.16.170 Hours of operation

It is unlawful for any adult oriented business premises, except adult motels, to be conducted, operated, or otherwise open to the public between the hours of 2:00 a.m. and 11:30 a.m.

(Ord. 5663 §2, 1997).

5.16.180 Record keeping requirements

A.    Within thirty (30) days following each calendar quarter, each adult oriented business licensee shall file with the Director a verified report showing the licensee’s gross receipts and amounts paid to entertainers, models, or escorts, if applicable, for the preceding calendar quarter.

B.    Each adult oriented business licensee shall maintain and retain for a period of two (2) years the names, address, and ages of all persons employed or otherwise retained as entertainers, models, and escorts by the licensee.

(Ord. 7003 §14, 2016; Ord. 5663 §2, 1997).

5.16.190 Suspension, or revocation of licenses and appeal procedure

A.    When the Director suspends or revokes a license hereunder, he/she shall notify the applicant in writing of the same, describing the reasons therefor, and shall inform the applicant of his/her right to appeal to the Hearing Examiner within ten (10) days of the date of the written notice by filing a written notice of appeal with the Director containing a statement of the specific reasons for the appeal and a statement of the relief requested. The Hearings Examiner shall be the Hearings Examiner appointed under OMC 5.05.

B.    Whenever the Director has found or determined that any violation of this chapter has occurred, he/she shall issue a Notice of Violation and Suspension or Revocation (“Notice”) to the licensee. In addition, the Director shall issue a Notice of Suspension or Revocation to the licensee or permit holder under the following circumstances:

1.    Where such license was obtained by fraud or false representation of fact;

2.    For the violation of, or failure to comply with, the provisions of this chapter or any other similar local or state law by the licensee or by any of its agents, employees, or representatives; when the licensee knew or should have known of the violations committed by its agents, employees, or representatives;

3.    For the conviction of the licensee of any crime or offense involving prostitution, promoting prostitution, violation of RCW 9A.40.100 and RCW 9.68A.100-103, or controlled substances (as that term is defined in chapter 69.50 RCW) committed on the premises, or the conviction of the licensee’s employees, agents, or representatives of any crime or offense involving prostitution, violation of RCW 9A.40.100 and RCW 9.68A.100-103, or controlled substances (as that term is defined in Chapter 69.50 RCW) committed on the licensed premises.

4.    Failure to pay City taxes.

C.    The notice shall include the following:

1.    Name(s) of person(s) involved.

2.    Description of the violation(s), including date and section of this chapter violated.

3.    Description of the administrative action taken.

4.    Rights of appeal as set forth above.

The notice shall be served either personally or by mailing a copy of the notice by certified mail, postage prepaid, return receipt requested, to the licensee at his or her last known address. Proof of service shall be made at the time of service by a written declaration under penalty of perjury, executed by the person effecting the service, declaring the time, date, and the manner by which service was made. The decision may be appealed to the Hearing Examiner if request for appeal is properly filed with the Director within ten (10) calendar days of receipt of the notice. Said request shall be in writing, state specific reasons for the appeal, and the relief requested.

D.    The suspension or revocation of a license shall be effective at the end of the expiration of any appeal period, unless there is a written request for an appeal properly filed by the licensee. If there is an appeal so requested, then the revocation or suspension shall be stayed pending the outcome of the appeal. This effective date of suspension shall not apply to any fire code violation or building code violation deemed by the appropriate officials to be a serious risk to health and welfare.

E.    Within ten (10) working days of receiving a timely appeal, the Director shall forward the administrative record of the licensing decision to the Hearing Examiner.

F.    When an applicant has appealed the Director decision according to the procedures herein, the Hearing Examiner shall review the administrative record as soon as possible, but no later than thirty (30) working days after the City receives the appeal. Written notice of the date, time, and place of the scheduled open record hearing will be given to the applicant by the Director by mailing the same, postage prepaid, to the applicant at the address shown on the license or permit application, at least five (5) days prior to the hearing, which take place within forty five (45) days of the date of the receipt of the notice of appeal.

G.    If the licensee appeals the notice to the Hearing Examiner, the licensee shall be afforded a reasonable opportunity to be heard as to the violation and action taken. The applicant and Director or his or her representative shall be given an opportunity to argue the merits of the appeal before the Hearing Examiner.

H.    The Hearing Examiner shall uphold the Director’s decision unless it finds the decision is not supported by substantial evidence.

I.    The Hearing Examiner shall issue a written decision within ten (10) working days of hearing the appeal. The Hearing Examiner may uphold the Director’s decision and deny the permit, overrule the Director’s decision and grant the permit, or remand the matter to the Director for further review and action. The Director shall complete further action or review within thirty (30) working days of receiving any remand.

J.    Decision by the Hearing Examiner shall constitute final administrative review. The applicant shall be responsible for the cost of any preparation of the record for appeal.

(Ord. 7003 §15, 2016; Ord. 6894 §6, 2014; Ord. 5663 §2, 1997).

5.16.200 Suspension or revocation of license –Duration

A license procured by fraud or misrepresentation shall be revoked. Where other violations of this chapter or other applicable ordinances, statutes, or regulations are found, the license shall be suspended for a period of thirty (30) days upon the first such violation, ninety (90) days upon the second violation within a twenty-four (24) month period and revoked for a third and any subsequent violations within a twenty-four (24) month period, not including periods of suspension.

(Ord. 5663 §2, 1997).

5.16.210 Signs

No photograph, drawing, sketch, or pictorial or graphic representation of any portion of the breast below the top of the areola or any portion of the pubic area, buttocks, genitals, and or anus may be visible outside of the adult oriented facility.

(Ord. 5663 §2, 1997).

5.16.220 Violations -- Misdemeanor -- Gross Misdemeanor -- Civil Infraction

A.    Any person, firm, or corporation who knowingly violates or fails to comply with any term or provision of this chapter shall be deemed to have committed a misdemeanor, and if found guilty, shall be subject to a fine not to exceed One Thousand Dollars ($1,000), and/or to imprisonment not to exceed ninety (90) days or to both such fine and imprisonment. Each day shall be a separate offense. In the event of a continuing violation or failure to comply, the second and subsequent days shall constitute a gross misdemeanor punishable by a fine not to exceed Five Thousand Dollars ($5,000) and/or imprisonment not to exceed three hundred and sixty-five (365) days or both such time and imprisonment. Continuing violation shall mean the same type of violation which is committed within a year of the initial violation.

B.    As an additional concurrent penalty, it shall be a civil infraction for a person, firm, or corporation to violate or fail to comply with any term or provision of this chapter. Each day shall be a separate infraction. A person, firm, or corporation found to have committed a civil infraction shall be assessed a monetary penalty as follows:

1.    First offense: Class 3 ($50), not including statutory assessments.

2.    Second offense arising out of the same facts as the first offense: Class 2 ($125), not including statutory assessments.

3.    Third offense arising out of the same facts as the first offense: Class 1 ($250), not including statutory assessments.

See also OMC Chapter 4.44, Uniform Civil Enforcement.

(Ord. 8061 §4, 2001; Ord. 5663 §2, 1997).

5.16.230 Public nuisance declared

A.    Public Nuisance. Any adult oriented business operated, conducted, or maintained in violation of this chapter or any law of the City of Olympia or the State of Washington shall be, and the same is, declared to be unlawful and a public nuisance. The City Attorney may, in addition to or in lieu of any other remedies set forth in this chapter, commence an action to enjoin, remove, or abate such nuisance in the manner provided by law and shall take such other steps and apply to such court or courts as may have jurisdiction to grant such relief as well as abate or remove such public nuisance, and restrain and enjoin any person from operating, conducting, or maintaining an adult cabaret/theater to the provisions of this chapter.

B.    Moral Nuisance. Any adult oriented business operated, conducted, or maintained contrary to the provisions of Chapter 7.48A RCW, Moral Nuisance, shall be, and the same is declared to be, unlawful and a public and moral nuisance and the City Attorney may, in addition to or in lieu of any other remedies set forth herein, commence an action or actions, to abate, remove, and enjoin such public and moral nuisance, or impose a civil penalty, in the manner provided by Chapter 7.48A RCW.

(Ord. 5663 §2, 1997).