Chapter 16.72
SEXUALLY ORIENTED BUSINESS REGULATIONS
Sections:
16.72.020 Applicability and exceptions.
16.72.030 Establishment of a sexually oriented business.
16.72.040 Measurement of distance.
16.72.060 Repealed.
16.72.080 Amortization and regulation of nonconforming sexually oriented business uses.
16.72.090 Extension of time for termination of nonconforming use.
16.72.010 Purpose and intent.
The purpose and intent of this chapter is to regulate sexually oriented businesses which, unless closely regulated, tend to have serious negative secondary effects on the community, which effects include, but are not limited to, the following: depreciation of property values and increases in vacancies in residential and commercial areas in the vicinity of sexually oriented businesses; interference with residential property owners’ enjoyment of their property when such property is located in the vicinity of sexually oriented businesses as a result of increases in crime, litter, noise and vandalism; higher crime rates in the vicinity of sexually 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 sexually oriented businesses.
It is neither the intent nor the effect of this chapter to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor the effect of this chapter to restrict or deny access by adults to communication materials or to deny access by the distributors or exhibitors of sexually oriented businesses to their intended market.
Nothing in this chapter is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any city ordinance or any statute of the state of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof.
Notwithstanding any other provision of this title, the regulations set forth under this chapter shall apply specifically to sexually oriented businesses. To the extent there are any inconsistencies between the provisions of Chapters 16.04 and 16.68 HMC, the provisions of this chapter shall govern. (Ord. 253 § 5(18.10), 2000)
16.72.020 Applicability and exceptions.
A. This chapter shall apply to the establishment of a sexually oriented business, as defined in Chapter 16.06 HMC (Definitions).
B. This chapter shall not apply to any of the following businesses or activities:
1. Any massage parlor or massage practitioner holding a valid current license issued pursuant to Chapter 5.16 HMC.
2. Any treatment administered in good faith in the course of the practice of any healing art or profession by any person holding a valid license or certificate issued by the state to practice any such art or profession under the provisions of the State Business and Professions Code or any other state law. (Ord. 253 § 5(18.20), 2000)
16.72.030 Establishment of a sexually oriented business.
The establishment of a sexually oriented business shall be permitted only in the CG (General Commercial), PC (Planned Commercial), BP (Business Park) and I (Industrial) Zones as set forth in Chapters 16.20 (Commercial Districts) and 16.24 HMC (Employment Districts), subject to the following regulations:
A. A sexually oriented business shall not be established or located within 750 feet of:
1. Any zone or land use district of an adjacent jurisdiction which contains the word “residential” or its equivalent of the adjacent jurisdiction;
2. Any residential use or residential zone.
3. Any religious institution, or property zoned, planned or otherwise designated for such use by city action, where a construction or use approval has been issued by the city prior to the city’s receipt of an application for a sexually oriented business permit.
4. Any funeral parlor, mortuary, cemetery, or similar facility where religious services are regularly conducted, or property zoned, planned or otherwise designated for such use by city action, where a construction or use approval has been issued by the city prior to the city’s receipt of an application for a sexually oriented business permit.
5. Any school, public park, or public or private playground, or other recreational facility where minors congregate, or property zoned, planned or otherwise designated for such use by city action, where a construction or use approval has been issued by the city prior to the city’s receipt of an application for a sexually oriented business permit.
6. Any existing sexually oriented business. If two or more existing sexually oriented businesses are located in closer proximity to each other than 200 feet, in determining which of the businesses is nonconforming, preference shall be given in the order of the respective lengths of continuous uninterrupted operation of the businesses.
B. The locational standards set forth in subsections (A)(2) through (6), inclusive, of this section shall pertain to legally established land uses in adjacent jurisdictions.
C. Each such sexually oriented business must, prior to commencement or continuation or substantial enlargement of such business, first apply for and receive a sexually oriented business license in accordance with the provisions of Chapter 5.18 HMC.
D. Where two or more sexually oriented business applications are submitted for businesses which would be located in closer proximity to each other than 200 feet, the application which was accepted first in time shall be processed by the city, with any later submitted applications deemed nonconforming until such time as a determination is made by the city on the initial application. (Ord. 253 § 5(18.30), 2000)
16.72.040 Measurement of distance.
For the purposes of this section, the distance between any two sexually oriented businesses shall be measured in a straight line, without regard to the boundaries of the city and to intervening structures, from the closest point of each business. The distance between any sexually oriented business and any residential use, religious institution, school, public park or sensitive use shall also be measured in a straight line, without regard to the boundaries of the city and to intervening structures, from the nearest portion of the property line of the lot where such sexually oriented business is conducted, to the nearest property line of a residential use, religious institution, school, public park or sensitive use. (Ord. 253 § 5(18.40), 2000)
16.72.050 Offenses.
In addition to all other offenses specified in this chapter, the municipal code and state statutes, a sexually oriented business shall be subject to the following restrictions:
A. Notwithstanding that it is not a criminal offense for a person to operate or cause to be operated a sexually oriented business in violation of the nudity limitation set forth in Chapter 5.18 HMC, it shall be unlawful to establish, substantially enlarge or operate a sexually oriented business within the city without first complying with the provisions of this chapter.
B. It shall be unlawful to operate or cause to be operated a sexually oriented business outside of the zones specified in this chapter.
C. It shall be unlawful and a misdemeanor to operate or cause to be operated a sexually oriented business in violation of the locational standards set forth in HMC 16.72.030.
D. It shall be unlawful to cause or permit the operation, establishment or maintenance of more than one sexually oriented business within the same building, structure or portion thereof, or to cause the increase of floor area of any sexually oriented business in any building, structure or portion thereof containing another sexually oriented business.
E. It shall be unlawful to cause or permit the operation, establishment or maintenance of a sex supermarket/sex mini-mall and/or a sexual encounter establishment, as defined herein. (Ord. 370 § 53, 2012; Ord. 253 § 5(18.50), 2000)
16.72.060 Violations – Penalties.
Repealed by Ord. 370. (Ord. 253 § 5(18.60), 2000)
16.72.070 Public nuisance.
In addition to any other penalties, any sexually oriented business which is operating in violation of this chapter or any provision thereof, or Chapter 5.18 HMC, or any provision thereof, is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation. (Ord. 370 § 54, 2012; Ord. 253 § 5(18.70), 2000)
16.72.080 Amortization and regulation of nonconforming sexually oriented business uses.
A. Establishment of Nonconforming Use. Any sexually oriented business which was legally established prior to February 9, 1996, shall be subject to all provisions of this chapter, except as otherwise provided herein.
B. Amortization. Any use of real property existing on February 9, 1996, which does not conform to the provisions this chapter, but which was constructed, operated and maintained in compliance with all previous regulations, shall be regarded as a nonconforming use which may be continued until May 9, 1996, after which time all such nonconforming uses shall be terminated unless an extension of time has been approved by the city manager pursuant to HMC 16.72.090.
C. Abandonment. Notwithstanding the above, any discontinuance or abandonment of the use of any lot or structure as a sexually oriented business for a period of 180 days shall result in a loss of legal nonconforming status of such use.
D. Amortization – Annexed Property. Any adult-oriented business which was a legal use at the time of annexation of the property and which is located in the city, but which does not conform to the provisions of this chapter, shall be terminated within one year of the date of annexation, unless an extension of time has been approved by the city manager in accordance with the provisions of HMC 16.72.090.
E. Alteration – Enlargement. Any nonconforming sexually oriented business shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use.
F. Conflicting Sexually Oriented Businesses. If two or more sexually oriented businesses are within 200 feet of one another and otherwise in a permissible location, the sexually oriented business which was first established and has continually operated at the particular location is the conforming use and the later established business(es) is nonconforming.
G. Subsequent Approvals. Any sexually oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of a sexually oriented business permit and/or license, of a school, public park, religious institution, public building likely to be frequented by minors, residential or other sensitive use within 750 feet of the sexually oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked. (Ord. 253 § 5(18.80), 2000)
16.72.090 Extension of time for termination of nonconforming use.
The owner or operator of a nonconforming use as described in HMC 16.72.080(B) or (D) may apply under the provisions of this section to the city manager for an extension of time within which to terminate the nonconforming use, as follows:
A. Time and Manner of Application. An application for an extension of time within which to terminate a use made nonconforming by the provisions of this chapter may be filed by the owner of the real property upon which such use is operated, or by the operator of the use. Such application must be filed with the city manager at least 60 days but no more than 180 days prior to the expiration of the time established in HMC 16.72.080 for termination of such use.
B. Content of Application – Fees. The application shall state the grounds for requesting an extension of time. The filing fee for such application shall be the same as that for a variance as is set forth in the schedule of fees established by resolution from time to time by the city council. An application which fails to state a basis upon which an extension may be granted, as set forth in subsection D of this section shall be returned to the applicant, as nonresponsive, together with the application fee less any administrative costs of processing the application.
C. Hearing Procedure. The city manager shall appoint a hearing officer to hear the application. The hearing officer shall set the matter for hearing within 20 business days of receipt of the application. All parties involved shall have the right to offer testimonial, documentary and tangible evidence bearing on the issues; may be represented by counsel; and shall have the right to confront and cross-examine witnesses. Any relevant evidence may be admitted that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. Any hearing under this section may be continued for a reasonable time for the convenience of a party or a witness. The decision of the hearing officer shall be final and subject to judicial review pursuant to Code of Civil Procedure Section 1094.8.
D. Approval of Extension – Findings. An extension under the provisions of this section shall be for a reasonable period of time commensurate with the investment involved, and shall be approved only if the hearing officer makes all of the following findings or such other findings as are required by law.
1. For uses which are rendered nonconforming by virtue of their proximity to other uses, pursuant to HMC 16.72.080:
a. The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted to another use; and such investment was made prior to February 9, 1996, or prior to the date of annexation; and
b. The applicant will be unable to recoup said investment as of the date established for termination of the use; and
c. The applicant has made good faith efforts to recoup the investment and to relocate the use to a location in conformance with HMC 16.72.080.
2. For uses which comply with the requirements of HMC 16.72.080, but whose business operations must be modified in order to comply with other provisions of this chapter:
a. The applicant has made a substantial investment (including but not limited to lease obligations) in the property or structure on or in which the nonconforming use is conducted; such property or structure cannot be readily converted so as to comply with the requirements of this chapter within the time period provided in HMC 16.72.080; and such investment was made prior to February 9, 1996, or prior to the date of annexation; and
b. The applicant will be unable to recoup said investment as of the date established for modification or termination of the use; and
c. The applicant has made good faith efforts to recoup the investment and has filed plans with the city which demonstrate the ability and intent to comply with the requirements of this chapter within a reasonable time, but needs additional time within which to make the required modifications. This finding shall be made with respect to each aspect of compliance, and no extension shall be granted for modifications which are required by this chapter and which can be made without additional time. (Ord. 253 § 5(18.90), 2000)