Chapter 18.96
COMBINING DISTRICT A-E (ADULT ENTERTAINMENT FACILITY)
Sections:
18.96.010 Applicability.
18.96.020 Purpose.
18.96.030 Definitions.
18.96.040 Location of adult entertainment facilities.
18.96.050 Regulations for A-E districts.
18.96.060 Impounding of newsracks.
18.96.070 Nonconforming uses.
18.96.080 Violation a nuisance.
18.96.090 Penalty.
18.96.010 Applicability.
Reserved. (Ord. 977 § 1 Ex. A (part), 1987)
18.96.020 Purpose.
In adopting the regulations set out in this chapter, it is recognized that certain types of adult entertainment facilities possess certain objectionable operational characteristics which, when concentrated, can have a deleterious effect upon adjacent areas. It is also recognized that locating the adult entertainment facilities covered by this chapter in the vicinity of facilities frequented by minors will increase the likelihood that minors will be exposed to materials intended for adults. In addition, it is recognized that many persons are offended by the public display of certain sexual material. Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhood and to an adverse effect on minors. (Ord. 1319 § 21, 2003; Ord. 977 § 1 Ex. A (part), 1987)
18.96.030 Definitions.
As used in this part, the following terms shall have the following meanings:
A. “Specified sexual activities” means:
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 sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following depicted sexually oriented acts or conduct: Analingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism or zooerasty;
2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence;
3. Use of human or animal masturbation, sodomy, oral copulation, coitus or ejaculation;
4. Fondling or touching of nude human genitals, pubic region, buttocks or female breast;
5. Masochism, erotic or sexually oriented torture, beating or in the infliction of pain;
6. Erotic or lewd touching, fondling or other contact with an animal by a human being;
7. Human excretion, urination, menstruation, vaginal or anal irrigation;
8. Any combination of the above items 1 through 8.
B. “Specified anatomical areas” means:
1. Less than completely and opaquely covered:
a. Mature human genitals,
b. Mature human buttock,
c. Mature human female breast below a point immediately above the top of the areola;
2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
C. “Adult newsrack” means any coin-operated machine or device which dispenses material substantially devoted to the depiction of “specified sexual activities” or “specified anatomical areas.”
D. “Adult bookstore” means an establishment having as a substantial or significant portion of its stock in trade, books, magazines and other periodicals which are substantially devoted to the depiction of “specified sexual activities” or “specified anatomical areas,” or an establishment with a segment or section devoted to the sale or display of such material.
E. “Adult motion picture theater” means a building or portion thereof, or area, whether open or enclosed, used for presenting material in the form of motion picture film, videotape or other means which is substantially devoted to the depiction of “specified sexual activities” or “specified anatomical areas” for observation by persons therein.
F. “Adult hotel or motel” means a hotel or motel wherein material is presented which is distinguished or characterized by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas.”
G. “Adult 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 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.”
H. “Cabaret” means a nightclub, theater or other establishment which features live performances by topless and/or bottomless dancers, “go-go” dancers, exotic dancers, strippers or similar entertainers, where such performances are distinguished or characterized by an emphasis on “specified sexual activities” or “specified anatomical areas.”
I. “Massage establishment” means any establishment where, for any form of consideration or gratuity, massage, alcohol rub, administration of fomentations, electric or magnetic treatments, or any other treatment or manipulation of the human body occurs.
J. “Model studio” means any business where, for any form of consideration or gratuity, figure models who display “specified anatomical areas” are provided to be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by persons paying such consideration or gratuity.
K. “Sexual encounter center” means any business, agency or person who, for any form of consideration or gratuity, provides a place where two or more persons, not all members of the same family, may congregate, assemble or associate for the purpose of engaging in “specified sexual activities” or exposing “specified anatomical areas.”
L. “Other sex business” means any other business or establishment which offers its patrons goods, services or entertainment, or any combination thereof, characterized by an emphasis on matter depicting, describing or relating to “specified sexual activities” or “specified anatomical areas,” including such types of business known as adult dance studios, men’s social clubs and rap studios which meet such definition.
M. “Adult entertainment facility” means an adult newsrack, adult bookstore, adult motion picture theater, adult hotel or motel, adult motion picture arcade, cabaret, massage establishment, model studio, sexual encounter center, or any other sex business, or any combination of two or more of such uses.
N. “Exposes to public view” means exposes to the view of persons outside the building in which such adult entertainment facility is located. (Ord. 977 § 1 Ex. A (part), 1987)
18.96.040 Location of adult entertainment facilities.
No person, whether as a principal or agent, clerk or employee, either for himself or for any other person, or as an officer of any corporation or otherwise, shall place, maintain, own or operate an adult entertainment facility in any residential zone in the City, or in any other place within the City, unless such place is then duly and validly zoned for such use by the prior inclusion of such location within a Combining District A-E. (Ord. 977 § 1 Ex. A (part), 1987)
18.96.050 Regulations for A-E Districts.
There is hereby authorized, subject to adoption to specific zoning, a classification to be known as “Combining District A-E.” The following regulations shall apply in all districts with which are combined A-E Districts, in addition to the regulations hereinbefore specified therefor, and shall be subject to the provisions of this title; provided, however, that if any of the regulations specified in this chapter section differ from any of the corresponding regulations specified in this title for any district with which is combined as A-E District, then in such case the provisions of this chapter shall govern. Subject to the foregoing, adult entertainment uses are permitted in A-E Combining Districts, provided:
A. Each such facility must, prior to commencement or continuation of such business, first apply for and receive from the Planning Commission a written use permit.
B. The Planning Commission or City Council, upon appeal, shall issue such use permit if that body finds that the proposed facility or use complies with the regulations specified in this chapter. If such permit is granted, it shall be granted upon such reasonable conditions, e.g. hours of operation, exterior lighting, display materials, and other similar conditions, as may be necessary to protect the public health, safety and welfare.
C. Any party aggrieved by a decision of the Planning Commission on an application for such a use permit shall have the right to appeal such decision to the City Council, provided that notice of such appeal is filed with the City Clerk within five days following the decision from which appeal is made.
D. Subsequent to receipt of a valid use permit, but prior to establishment of the adult entertainment facility, the applicant shall apply for and receive a valid adult entertainment license, as provided for in Title 5 of this Code.
E. Each such facility must comply with all applicable regulations of the other districts with which the A-E District is combined.
F. No such facility or use may be located within one thousand feet of any residential zone of the City of San Carlos or of any other city.
G. No such facility or use may be located within one thousand feet of any other such facility or use. The distance between any two adult entertainment facilities or uses shall be measured in a straight line, without regard for intervening structures, from the closest exterior structural wall of the building in which the facility or use is located.
H. Materials offered for sale from newsracks shall not be displayed in any manner which exposes to public view photographs or illustrations of specified sexual activities or of naked adults in poses which emphasize or direct the viewer’s attention to the subject’s genitals.
I. No adult entertainment facility shall display or exhibit any material in a manner which exposes to the public view photographs or illustrations of specified sexual activities or naked adults in poses which emphasize or direct the viewer’s attention to the subject’s genitals. (Ord. 977 § 1 Ex. A (part), 1987)
18.96.060 Impounding of newsracks.
A. The provisions of this Code dealing with nonconforming uses shall not be applicable to adult newsracks, and on the effective date of the ordinance adopting the regulations set out in this title, all adult newsracks shall be required to comply with the provisions of this chapter.
B. An adult newsrack found to be in violation of this part may be impounded by a Police Officer of the City after the following actions have occurred:
1. A notice of violation has been affixed to the adult newsrack stating the section of this chapter which has been violated, and stating that the adult newsrack will be impounded if the violation is not abated within three days;
2. The violation has not been abated within three days of the posting of the notice of violation;
3. The Police Department has presented to any magistrate affidavits or other evidence sufficient to show a prima facie violation of this chapter;
4. A magistrate has issued a written order permitting the impounding of the adult newsrack pursuant to this chapter.
C. Whenever an adult newsrack is impounded, a complaint for violation of the section of this chapter for which the adult newsrack was impounded must be filed within fourteen days of the impounding. If such action is not commenced within fourteen days, or if a final appealable decision in such action is rendered more than sixty days from filing of the action, the adult newsrack, together with its contents and all moneys, if any, shall be released to any person who provides sufficient proof of ownership of such adult newsrack, without requiring the payment of any impound fees; provided, however, that no adult newsrack shall be released because a final appealable decision was not rendered within sixty days of the filing of the action if the claimant of the adult newsrack is responsible for extending the judicial determination beyond the allowable time limit.
D. The person who provides sufficient proof of ownership of such adult newsrack may have such adult newsrack, together with its contents and all moneys, if any, returned upon paying an impound fee of twenty-five dollars, or upon order of the magistrate, if any, who authorized the seizure of the newsrack, or pursuant to terms of subsection C above. Should there be a dismissal of the action charging a violation of this chapter, or an acquittal of such charges, the court ordering such dismissal or entering such acquittal may provide for the release of any newsrack and its contents, if any, impounded or the return of any impound fee paid for the release of an adult newsrack impounded pursuant to such charges. (Ord. 977 § 1 Ex. A (part), 1987)
18.96.070 Nonconforming uses.
Any adult entertainment facility other than an adult newsrack which is in existence and actively in business on the date that the regulation codified in this title becomes effective shall be deemed a nonconforming use. Such a nonconforming use shall be permitted to continue for a period not to exceed eighteen months, unless sooner terminated for any reason whatever, or voluntarily discontinued for a period of thirty days or more. Such nonconforming use shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. (Ord. 977 § 1 Ex. A (part), 1987)
18.96.080 Violation a nuisance.
Every violation of the regulation contained in this chapter shall constitute and is hereby declared to be a public nuisance, which may be abated pursuant to the provisions of Chapter 731 of the Code of Civil Procedure of the State of California. The total cost of abatement shall be made a special assessment against the interest, if any, in the parcel of land upon which such nuisance is maintained, had or possessed by the person determined in such judicial proceeding to be responsible for the operation and maintenance of such nuisance. Upon a judicial determination in a civil action under Civil Code Section 3494 and Code of Civil Procedure Section 731 that a public nuisance did exist, such cost of abatement shall, by special ordinance, be made in lien against such property and a personal obligation against the person responsible for the operation and maintenance of such nuisance, and shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to such special assessment. This remedy is in addition to any other remedy provided by law. (Ord. 977 § 1 Ex. A (part), 1987)
18.96.090 Penalty.
Notwithstanding any other provision of this chapter, any person who violates this chapter shall be guilty of a misdemeanor and may be punished as follows:
A. By imprisonment in the County Jail not to exceed six months;
B. By forfeiture of the newsrack impounded pursuant to Section 18.96.060, provided the reasonable value of such newsrack does not exceed five hundred dollars;
C. A fine not exceeding five hundred dollars;
D. A combination of such imprisonment, forfeiture and/or fine; providing, however, that in no event shall any fine imposed, when added to the reasonable value of any impounded newsrack which is forfeited, exceed the sum of five hundred dollars. (Ord. 977 § 1 Ex. A (part), 1987)