Chapter 5.96
ADULT ORIENTED BUSINESS

Sections:

5.96.005    Intent.

5.96.010    Definitions.

5.96.015    Permit Required.

5.96.020    Application Requirements.

5.96.025    Application/Findings/ Requirements.

5.96.030    Permit Duration.

5.96.035    Permit Renewal.

5.96.040    Permits Non-Transferable; Use Specific.

5.96.045    Enforcement and Revocation.

5.96.050    Violation.

5.96.055    Existing Adult Businesses.

5.96.005 Intent.

The intent of this chapter is to regulate adult oriented businesses which, because of their very nature, are believed to have many of the recognized significant secondary effects on the community which include, but are not limited to: depreciated property values and increased vacancies in residential and commercial areas in the vicinity of the adult oriented businesses; higher crime rates, noise, debris or vandalism in the vicinity of adult 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 uses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the neighborhoods in the vicinity of the adult oriented businesses. It is neither the intent, nor effect of this section to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent, nor effect of this section to restrict or deny access by adults to sexually oriented materials or merchandise protected by the First Amendment, or to deny access by the distributors or exhibitors of adult oriented business to their intended market.

Nothing in this section 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 exposure, sexual conduct, lewdness or obscene or harmful matter or the exhibition or public display thereof. (Ord. 94-27 § 1 (part), 1994)

5.96.010 Definitions.

As used in this chapter:

“Adult bookstore” means any establishment, which as a regular and substantial course of conduct, displays and/or distributes adult merchandise, books, periodicals, magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films, or other written, oral or visual representations which are distinguished or characterized by an emphasis on a matter depicting, describing or relating to specified sexual activities or specified anatomical parts. (See “adult-oriented business” for definition of regular and substantial portion of its business.)

“Adult cabaret” means a nightclub, bar, lounge, restaurant or similar establishment or concern which features as a regular and substantial course of conduct, any type of live entertainment, films, motion pictures, videos, slides, other photographic reproductions, or other oral, written or visual representations which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

“Adult hotel/motel” means a hotel or motel, which as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed-circuit television or other medium, material which is distinguished or characterized by the emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts and/or which rents, leases or lets any room for less than a twelve (12) hour period and/or rents, leases or lets any room more than once in a twenty-four (24) hour period and/or which advertises the availability of any of the above.

“Adult model studio” means any premises where there is furnished, provided or procured a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts where such model(s) is being observed or viewed by any person for the purpose of being sketched, painted, drawn, sculptured, photographed, filmed, or videotaped for a fee, or any other thing of value, as a consideration, compensation or gratuity for the right or opportunity to so observe the model or remain on the premises. Adult model studio shall not include any live art class or any studio or classroom which is operated by any public agency, or any private educational institution authorized to issue and confer a diploma or degree under Section 94300, et seq. of the Education Code.

“Adult motion picture arcade” means any business establishment or concern containing coin or slug operated or manually or electronically controlled still, motion picture or video machines, projectors, or other image producing devices that are maintained to display images to an individual in individual viewing areas when those images are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

“Adult-oriented business” means any business establishment or concern which as a regular and substantial course of conduct performs as an adult bookstore, adult theater, adult motion picture arcade, adult cabaret, stripper, adult model studio, adult motel/hotel; any business establishment or concern which as a regular and substantial course of conduct sells or distributes sexually oriented merchandise or sexually oriented material; or any other business establishment or concern which as a regular and substantial course of conduct offers to its patrons products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts. “Adult-oriented business” does not include those uses or activities, the regulation of which is preempted by State law. For the purposes of this section, a business establishment or concern has established the provision of products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts as a regular and substantial course of conduct when one or more of the following conditions exist:

1.    The area devoted to adult merchandise and/or sexually oriented material exceeds more than twenty-five (25) percent of the total display or floor space area open to the public;

2.    The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on specified sexual activity or specified anatomical parts at least four times in any month;

3.    The regular and substantial course of conduct of the business consists of or involves 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 activity or specified anatomical parts.*

“Adult theater” means a business establishment or concern which, as a regular and substantial course of conduct, presents live entertainment, motion pictures, videos, slide photographs, or other pictures or visual reproductions which are distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

“Entertainer” means any person who dances, models, entertains, and/or performs specified sexual activities or displays specified anatomical parts in an adult-oriented business.

“Live art class” means any premises on which all of the following occur: there is conducted a program of instruction involving the drawing, photographing or sculpting of live models exposing specified anatomical parts; instruction is offered in a series of at least two classes; the instruction is offered indoors; an instructor is present in the classroom while any participants are present; and preregistration is required at least twenty-four (24) hours in advance of participation in the class.

“Sexually oriented material” means any element of sexually oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, or other written, oral or visual representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter depicting, describing or relating to specific sexual activities or specified anatomical parts.

“Sexually oriented merchandise” means sexually oriented implements and paraphernalia, such as, but not limited to dildos, auto sucks, sexually oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity.

“Specified anatomical parts” means

1.    Less than completely and opaquely covered human genitals; pubic region; buttocks, or female breast below a point immediately above the top of the areola; or

2.    Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

“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 a sexual relationship, or the use of excretory function in the context of a sexual relationship, any of the following depicted sexually oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerastia; or

2.    Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or

3.    Use of human or animal ejaculation, sodomy, oral copulation, coitus or masturbation; or

4.    Fondling or touching of nude human genitals, pubic region, buttocks or female breast; 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.    The presence of any person who performs, or appears in attire where specified anatomical parts are either not opaquely covered or minimally covered with devices commonly referred to as pasties and G-strings or any other opaque covering, over the nipple and areola of the female breast, and while covering the natal cleft and pubic area covers less than one inch on either side of the entire length of the natal cleft and two inches across the pubic area. (Ord. 99-2 § 5, 1999; Ord. 96-5 § 5, 1996: Ord. 95-16 § 1, 1995: Ord. 95-13 § 3, 1995: Ord. 94-27 § 1 (part), 1994)

*    No adult-oriented business shall be issued a permit or be permitted to operate within the City if in the presentation of sale, trade, display or presentation of services, products or entertainment characterized by an emphasis on matters, depicting, describing or relating to specified sexual activity or specified anatomical parts is otherwise prohibited by local, state or federal law.

5.96.015 Permit Required.

No adult-oriented business shall be permitted to operate, engage in, conduct or carry on business within the City unless the owner of the business first obtains both an adult oriented business permit and a business license from the City of Newport Beach. (Ord. 94-27 § 1 (part), 1994)

5.96.020 Application Requirements.

A.    Application Submittal. The property owner, or authorized agent of the property owner, is eligible to request an adult-oriented business permit. Applications shall be submitted to the Revenue Division.

The following information is required at the time an adult-oriented business permit is submitted:

1.    A completed adult-oriented business permit application signed by the property owner or authorized representative.

2.    A nonrefundable deposit or fee as set forth by ordinance or resolution of the City Council:

3.    A letter of justification and diagram or floor plan describing the proposed project and explaining how it complies or will comply with the findings/requirements contained in Section 5.96.025.

4.    Signed statement by the applicant verifying the applicant intends to and will comply with all operational requirements of Section 5.96.025.

5.    Signed statement that the applicant, and/or the applicant’s officers, partners or investors have not had an adult-oriented business permit revoked within the previous two years.

6.    All other information as required by City of Newport Beach adult-oriented business permit information sheet.

B.    Determination of Completeness. The City Manager shall determine whether the application contains all the information required by the provisions of this Chapter 5.96. If it is determined that the application is not complete, the applicant shall be notified in writing within ten business days of the date of receipt of the application that the application is not complete and the reasons therefor, including any additional information necessary to render the application complete. The applicant shall have thirty (30) calendar days to submit additional information to render the application complete. Failure to do so within the thirty (30) day period shall render the application void. Within five business days following the receipt of an amended application or supplemental information, the City Manager shall again determine whether the application is complete in accordance with the procedures set forth in this subsection. Evaluation and notification shall occur as provided above until such time as the application is found to be complete. The applicant shall be notified within five days of the date the application is found to be complete. All notices required by this chapter shall be deemed given upon the date they are either deposited in the United States mail or the date upon which personal service of such notice is provided. (Ord. 98-6 § 1, 1998: Ord. 94-27 § 1 (part), 1994)

5.96.025 Application/Findings/ Requirements.

The City Manager shall issue an adult-oriented business permit within forty-five (45) days of receipt of a complete application if he/she finds that the application fully complies with the findings/requirements of this section. If the City Manager has not made a decision within forty-five (45) days of receipt of a complete application the applicant shall be permitted to begin operating the establishment for which a permit is sought, unless and until the City Manager notifies the applicant of a denial of the application and states the reason(s) for the denial. A complete application shall consist of all sections of the written application answered with requested information accompanied by plans showing how the business intends to comply with the requirements of this chapter and applicable requirements of Chapter 5.28. The decision of the City Manager to issue or deny a permit shall be final. The City Manager shall take all lawful steps to insure that any applicant whose permit has been denied pursuant to this section shall be afforded prompt judicial review of the City Manager’s decision to deny the permit.

A.    The adult-oriented business is located in an approved zoning district in compliance with zoning and location requirements of Title 20 of this Code.1

1    “The distance limitations contained in Section 20.48.020 subsection (C) are inapplicable if approved residential use or district, religious institution, public beach or park, school or city facility locates or seeks permission to locate within the prescribed distance of a proposed adult-oriented business after the application for the adult-oriented business has been submitted.”

B.    The adult-oriented business is not located completely or partially within any mobile structure or pushcart.

C.    The adult-oriented business shall not stage any special events, promotions, festivals, concerts or similar events which would increase the demand for parking beyond the approved number of spaces for the particular use.

D.    The adult-oriented business shall not conduct any massage, acupuncture, tattooing, acupressure, fortune-telling or escort services on the premises.

E.    The adult-oriented business provides a security system that visually records and monitors all parking lot areas. All indoor areas of the adult-oriented business shall be open to public view at all times with the exception of restroom facilities. “Accessible to the public” shall include but not be limited to those areas which are only accessible to members of the public who pay a fee and/or join a private club or organization.

F.    The adult-oriented business complies with the City’s sign regulations.

G.    The adult-oriented business complies with the development and design requirements of the zone in which it is to be located for the specific underlying use.

H.    The adult-oriented business shall not display any sexually oriented material or sexually oriented merchandise which would be visible from any location outside the adult-oriented business.

I.    The adult-oriented business shall not allow admittance to any person under the age of eighteen (18) if no liquor is served, or under the age of twenty-one (21) if liquor is served.

J.    The adult-oriented business will not operate between the hours of two a.m. and seven a.m.

K.    Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, of the adult-oriented business have been found guilty within the past two years of a misdemeanor or felony classified by the state as a sex-related offense and have not violated any of the provisions of an adult-oriented business permit or similar permit or license in any City, County, Territory or State.

L.    The adult-oriented business provides separate restroom facilities for male and female patrons. The restrooms shall be free from sexually oriented materials and sexually oriented merchandise. Only one person shall be allowed in the restroom at any time, unless otherwise required by law, in which case the adult-oriented business shall employ a restroom attendant who shall be present in the restroom during operating hours who shall prevent any person(s) from engaging in any specified sexual activities within the restroom.

M.    The interior of the adult-oriented business is configured such that there is an unobstructed view of every public area of the premises, including but not limited to, the interior of all individual viewing areas, from a manager’s station which is no larger than thirty-two (32) square feet of floor area with no single dimension being greater than eight feet in a public portion of the establishment. No public area, including but not limited to, the interior of any individual viewing area, shall be obscured by any door, curtain, wall, two-way mirror or other device which would prohibit a person from seeing into the interior of the individual viewing area from the manager’s station. A manager shall be stationed in the manager’s station at all times the business is in operation or open to the public in order to enforce all rules and regulations. No individual viewing area shall be designed or operated to permit occupancy of more than one person at a time. “Individual viewing area” shall mean any area designed for occupancy of one person for the purpose of viewing live performances, pictures, movies, videos or other presentations. To the extent this provision is inconsistent with any other provision of this code regulating the interior arrangement of adult-oriented businesses this provision shall control.

N.    All areas of the adult-oriented business shall be illuminated at a minimum of 2.0 footcandle, minimally maintained and evenly distributed at ground level.

O.    The individual viewing areas of the adult-oriented business shall be operated and maintained with no holes, openings or other means of direct visual or physical access between the interior space of two or more individual viewing areas.

P.    The adult-oriented business complies with the noise element of the general plan, interior and exterior noise standards and any mitigation measures necessary to reduce the project’s noise impacts to the City’s articulated noise standard.

Q.    No live entertainment, as that term is defined in Section 5.28.010 of this Code, shall be provided without first obtaining a permit pursuant to Chapter 5.28 of this Code.

R.    No building, premises, structure, or other facility shall be permitted to contain more than one type of adult-oriented business as such types of adult-oriented business are defined in Section 5.96.010. For the purposes of this section, the catchall phrase “adult-oriented business” shall not be considered a single type of adult-oriented business.

S.    No individual viewing area may be occupied by more than one person at any one time.

T.    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. No exterior door or window shall be propped or kept open at any time during hours of operation; any exterior windows shall be covered with opaque covering at all times.

U.    No owner or other person with managerial control over an adult-oriented business shall permit any person on the premises of the premises of the adult-oriented business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, and/or the female breasts with less than a fully opaque covering over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state. This provision may not be complied with by applying an opaque covering simulating the appearance of the specific anatomical part required to be covered.

V.    No operator, entertainer, employee or agent of an adult-oriented business providing live entertainment shall permit to be performed, offer to perform or perform sexual intercourse, oral or anal copulation, fondling or physical stimulation of either clothed or unclothed human genitals, pubic regions, buttocks or female breasts with any patron.

W.    No operator, entertainer or employee or agent of an adult-oriented business shall permit any patron to touch, caress, or fondle the clothes or unclothed breast, buttocks, anus or genitals of any operator, entertainer, employee or agent of an adult-oriented business providing live entertainment or permit any entertainer, operator, employee or agent to touch, caress or fondle the clothed or unclothed breasts, buttocks, anus, genitals of any patron.

X.    The place of entertainment will provide separate restroom facilities for male and female patrons. The restrooms will be free from sexually oriented materials and sexually oriented merchandise as those terms are defined in Chapter 5.96 of the Newport Beach Municipal Code. Only one person will be allowed in the restroom at any time, unless otherwise required by law, in which case the adult-oriented business will employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant will insure that no person of the opposite sex is permitted in the restroom, that not more than one person is permitted to enter a restroom stall, and, with the exception of urination and excretion, and the necessary disrobing associated with the aforementioned bodily functions, that no person engages in any specified sexual activity in the public portion of the restroom. (Ord. 2013-11 § 28, 2013; Ord. 2000-21 § 1, 2000: Ord. 99-2 § 6, 1999: Ord. 98-23 § 1, 1998: Ord. 98-6 § 2, 1998: Ord. 96-5 § 6, 1996: Ord. 94-27 § 1 (part), 1994)

5.96.030 Permit Duration.

An adult-oriented business permit shall be valid for a period of one year from the date of issuance. (Ord. 94-27 § 1 (part), 1994)

5.96.035 Permit Renewal.

An adult-oriented business permit shall be renewed on a year to year basis provided that the permittee and the adult oriented business continues to meet the requirements set forth in this chapter.

A request for permit renewal must be accompanied by a completed adult oriented business permit application. If said application conforms to the previously approved application and the adult-oriented business has not changed, the permit shall be renewed by the Revenue Manager for another year.

Any change or alteration in that nature or operation of the adult-oriented business will require the renewal to be reviewed by the City Manager. The renewal fee for an adult-oriented business permit shall be established by ordinance or resolution of the City Council. (Ord. 94-27 § 1 (part), 1994)

5.96.040 Permits Non-Transferable; Use Specific.

No adult-oriented business permit may be sold, transferred, or assigned by any permittee or by operation of law, to any other person, group, partnership, corporation or any other entity. Any such sale, transfer, or assignment or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the permit and the permit shall be thereafter null and void. An adult-oriented business permit held by a corporation or partnership is subject to the same rules of transferability as contained above. Any change in the nature or composition of the adult-oriented business from one element of an adult-oriented business to another element of an adult-oriented business or any increase of ten percent or more of the floor area of the adult-oriented business shall also render the permit null and void. An adult-oriented business permit shall only be valid for the exact location specified on the permit. No off-site presentations of entertainment as defined in Section 5.28.010 subsection one shall be permitted. (Ord. 98-6 § 3, 1998: Ord. 94-27 § 1 (part), 1994)

5.96.045 Enforcement and Revocation.

A.    Inspections. The permittee shall permit officers of the City of Newport Beach, the County of Orange, and each of their authorized representatives to conduct unscheduled inspections of the premises of the adult-oriented business for the purpose of ensuring compliance with the law at any time the adult-oriented business is open for business or occupied.

B.    Revocation Grounds. The City Manager may revoke an adult-oriented business permit when he or she discovers that any of the following have occurred.

1.    A violation of or failure to comply with any of the finding/requirements contained in Section 5.96.025 has occurred;

2.    It is discovered that the application contains incorrect, false or misleading information;

3.    The applicant is convicted of any felony or misdemeanor which is classified as a sex or sex-related offense, or has been found to be in violation of the City’s zoning ordinance, any violation of the City’s massage ordinance, or any violation of any other adult business ordinance of any other City, County or State;

4.    Any person has been convicted of a sex-related offense as a result of his or her activity on the premises of the adult-oriented business;

5.    There has occurred on the premises a violation of any provision of Section 5.28.041.

C.    Revocation Notice. Upon determining that the grounds for permit revocation exist, the City Manager shall furnish written notice of the proposed revocation to the permittee. Such notice shall summarize the principal reasons for the proposed revocation, shall state that the permittee may appeal the decision within fifteen (15) calendar days of the posting or the postmarked date on the notice. The notice shall be delivered both by posting the notice at the location of the adult-oriented business and by sending the same, certified mail, return receipt requested and postage pre-paid, to the permittee as that name and address appears on the permit. Not later than fifteen (15) calendar days after the latter of the mailing or posting of the notice, the permittee may file an appeal of the City Manager’s determination with the City Clerk. If the appeal is filed within fifteen (15) calendar days of the mailing or posting of the notice referenced above, the appeal hearing shall be provided as contained in subsection (D) of this section.

D.    Appeal or Call for Review. Any person aggrieved by a decision to revoke a permit under this chapter may file an appeal with the City Clerk within ten (10) days of the decision. The request for the appeal shall state the grounds upon which the appeal is based. A member of the City Council, in their official capacity, may call for review any decision to revoke a permit under this chapter for the purpose of bringing the matter in front of the entire body for review. A call for review is exempt from the payment of a fee and shall be filed with the City Clerk on a form provided by the Clerk. Upon receipt, the City Clerk shall schedule an appeal or call for review hearing before the City Council or an appointed hearing officer and shall provide written notice of the time, date and location of the hearing to the applicant. The City Council shall hear all calls for review. The hearing shall be held no later than forty-five (45) days from the date the request for the appeal or call for review is received by the City Clerk. The City Council shall determine whether grounds for revocation of the adult-oriented business permit exists and shall render their decision at the conclusion of the hearing or upon recommendation of the hearing officer unless the applicant otherwise consents to a continuance.

E.    Reapplication After Revocation. No person, corporation, partnership or member thereof or any other entity may obtain an adult-oriented business permit for two years from the date the order of revocation has been implemented. (Ord. 2015-9 § 12, 2015; Ord. 98-6 § 4, 1998: Ord. 96-5 § 7, 1996: Ord. 95-16 § 2, 1995: Ord. 94-27 § 1 (part), 1994)

5.96.050 Violation.

Any establishment operated, conducted or maintained contrary to the provisions of this chapter is unlawful and a public nuisance, and the City Attorney may commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof in the manner provided by law, and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such adult-oriented business and restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this chapter. (Ord. 99-2 § 7, 1999: Ord. 96-5 § 8, 1996: Ord. 94-27 § 1 (part), 1994)

5.96.055 Existing Adult Businesses.

Any lawfully existing and operating adult-oriented business which becomes a nonconforming use by reason of the adoption of this chapter shall be deemed to have been issued a permit pursuant to this chapter subject to the following:

A.    The nonconforming operation shall be brought into immediate full compliance with subsections (C), (H), (I), (J) and (S) of Section 5.96.025; and the nonconforming business shall be brought into compliance with subsections (B), (D), (N), (O), (P), (Q) and (T) of Section 5.96.025 not later than one year from the date the ordinance codified in this chapter is adopted; and the nonconforming businesses shall be brought into compliance with subsections (E), (G), (L), (M), (N), (P), and (R) of Section 5.96.025 not later than five years from the date of adoption of the ordinance codified in this chapter.

Failure to comply with the requirements of this chapter within the amortization periods provided in this section may subject the business to revocation of the permit. Notwithstanding the above, any business legally existing and operating as of the date of adoption of the ordinance codified in this chapter which does not comply with the zoning provisions found in Title 20 of this Code shall not be required to relocate and shall be considered nonconforming as to its location until such business is abandoned or otherwise terminated. (Ord. 2013-11 § 29, 2013; Ord. 94-27 § 1 (part), 1994)