Chapter 5.05
Adult Entertainment
Sections:
5.05.040 Permitted only in the industrial zone.
5.05.050 Sexually oriented business permit.
5.05.070 Appeals of permit or license denials.
5.05.080 Suspension or revocation of permits or licenses.
5.05.110 Video stores other than sexually oriented businesses.
5.05.120 Adult bookstores not “adult arcades.”
5.05.130 Exterior depictions of nudity prohibited.
5.05.140 Parking and exterior lighting.
5.05.150 Only one sexually oriented business per building.
5.05.190 Exemptions for modeling.
5.05.200 Public nuisance, moral nuisance, injunctions.
5.05.210 Limitation of liability.
5.05.020 Purpose.
It is the purpose of this chapter to regulate sexually oriented businesses and related activities to promote health, safety, morals, and general welfare of the citizens of the City of DuPont, and to establish reasonable and uniform regulations to prevent the deleterious location of sexually oriented businesses within the City. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the State or federal constitutions, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene materials. (Ord. 97-564 § 1; Ord. 12-943 § 5. Formerly 5.04.020).
5.05.030 Definitions.
See Chapter 25.220 DMC. (Ord. 12-943 § 5. Formerly 5.04.030).
5.05.040 Permitted only in the industrial zone.
Except as provided in DMC 5.05.120 (adult bookstores not meeting the definition of “adult arcade”), sexually oriented businesses as defined herein may only locate within those portions of the industrial zone (as established in the industrial zone section of this title) at least 100 feet distant from all existing residences, residential zones, public parks, churches, other religious facilities, schools, and businesses deriving at least 50 percent of their revenues from the patronage of persons under 18 years of age. Such distance shall be measured in a straight line from the nearest property line of the proposed sexually oriented business site to the nearest property line of the other stated uses. (Ord. 97-564 § 3; Ord. 12-943 § 5. Formerly 5.04.040).
5.05.050 Sexually oriented business permit.
(a) No sexually oriented business shall operate without a valid, nontransferable sexually oriented business permit. Possession of other State or City permits or licenses shall not exempt any business from this requirement. Sexually oriented business permits are good only for the business name, location, and other particulars specified on the permit. No entertainer, employee, or operator shall knowingly work for or perform any service directly related to the operation of a sexually oriented business lacking a valid sexually oriented business permit.
(b) The Administrator is responsible for granting, denying, revoking, renewing, suspending, and canceling sexually oriented business permits and other licenses required by this adult entertainment chapter and for ascertaining whether such requested sexually oriented business or license complies with all applicable requirements.
(c) Any person desiring to operate a sexually oriented business shall file with the Administrator an original and two copies of a sworn permit application on a form supplied by the City, containing the following information:
(1) If the applicant is:
(A) An individual, he/she shall state their legal name and any aliases or previous married names and submit satisfactory proof that he/she is at least 18 years of age;
(B) A partnership, the partnership shall state its complete name, and the names of all partners, and include their dates of birth, and partnership agreement, if applicable;
(C) A corporation, the corporation shall state its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of Washington, the names and capacity of all officers, directors and shareholders, the name of the registered corporate agent, and the address of the registered office for service of process.
(2) Every individual, partner, officer, director, or shareholder party to the application shall submit, as part of the application:
(A) Their mailing address and residential address;
(B) An affidavit attesting to their identity and relationship to the corporation;
(C) A complete set of fingerprints, utilizing fingerprint forms as prescribed by the Chief of Police;
(D) Two two-inch-by-two-inch black and white full-face photographs of themselves taken within the preceding six months. The photographs shall be provided at the applicant’s expense. The permit or license, when issued, shall have affixed to it one such photograph;
(E) Their driver’s license numbers, Social Security numbers, and State or federal tax identification numbers.
(3) The application shall divulge whether any individual, partner, officer, director, or shareholder party to the application:
(A) Has been convicted of a specified criminal act as defined herein within the previous two years and, if so, shall state the specified criminal act involved and the date and place of conviction;
(B) Has 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 sexually oriented business for which the permit or license was denied, suspended, or revoked, and the date;
(C) Holds any other permits and/or licenses under this chapter or other similar ordinance of any other City or county and, if so, the names and locations of such other permitted businesses.
(4) The application shall also contain:
(A) The specific type of proposed business;
(B) The location of the proposed business, including a legal description of the property, street address, and telephone number(s), if any; and
(C) In the case of an adult cabaret, a sketch or diagram showing conformance with that portion of this chapter relating to adult cabarets, and a statement of total floor space occupied by the business.
(5) The applicant shall pay a nonrefundable application processing fee of $200.00 or as otherwise stipulated in DMC Title 2 at the time of filing. Annual fees shall also be required if the application is approved.
(6) 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 their knowledge.
(d) Applicants for permits and licenses 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 30 days from the date of such change by supplementing the application on file with the Administrator shall be grounds for suspension of a permit and license.
(e) In the event the Administrator determines or learns at any time that the applicant has improperly completed the application for a proposed sexually oriented business permit or license, he/she shall promptly notify the applicant of such fact and allow the applicant 10 days to properly complete the application. The time period for granting or denying a permit shall be stayed while the applicant properly completes the application.
(f) Applicants must be qualified according to the provisions of this chapter, must have a current City business license, and the premises must be inspected and found to be in compliance with health, fire, and building codes of the City.
(g) Upon receipt of an application properly filed with the Administrator and upon payment of the nonrefundable application fee, the Administrator shall immediately stamp the application as received and send photocopies of the application to other City departments or other agencies responsible for enforcement of health, fire, and building codes and laws. Within 50 working days of receipt of the application by the Administrator, said departments and agencies shall investigate the application and recommend approval or disapproval. A department or agency shall recommend disapproval of an application if it finds that the proposed sexually oriented business will violate any provision of any statute, code, ordinance, regulation or other law in effect in the City, and shall cite the same.
(h) The Administrator shall grant or deny an application for a permit within 60 days from the date of its proper filing, failure in which shall constitute approval of the permit, unless and until the Administrator notifies the applicant of a denial of the application and states the reason(s) for that denial.
(i) The permit, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the sexually oriented business. The permit shall be posted in a conspicuous place at or near the entrance to the sexually oriented business.
(j) The Administrator shall grant the application unless an applicant:
(1) Is under 18 years of age;
(2) Is overdue on his/her payment to the City of taxes, fees, fines, or penalties assessed against him/her or imposed upon him/her in relation to a sexually oriented business;
(3) Has failed to provide required application or has provided false information on the application form; or
(4) Has failed to comply with any provision or requirement of this chapter.
(k) Each valid sexually oriented business permit shall be subject to an annual fee, the purpose of which is to offset the cost of administering this chapter. Unless otherwise stipulated in DMC Title 2, the annual fee for adult cabarets shall be $500.00, and the annual fee for all other types of sexually oriented businesses shall be $300.00. Nonpayment of annual fee on the annual due date shall render the permit immediately null and void. (Ord. 97-564 § 4; Ord. 12-943 § 5. Formerly 5.04.050).
5.05.060 Personnel licenses.
(a) Adult Cabaret Manager or Entertainer License. No person shall manage or entertain at an adult cabaret until at least 14 days after having obtained a nontransferable adult cabaret manager or entertainer license from the Administrator. The process and information requirements shall be the same as that for sexually oriented business permits, except that the nonrefundable processing fee shall be $125.00, and the annual license fee shall be $300.00 or, in both cases, as otherwise stipulated in DMC Title 2. The purpose of the fees is to offset the cost of administering this chapter. Nonpayment of annual fee on the annual due date shall render the license immediately null and void. The license of the manager on duty shall be prominently posted during business hours. Entertainers’ licenses shall be posted in their work areas in a manner readily available for public inspection. No one under 18 years of age may hold an adult cabaret manager’s or entertainer’s license.
(b) Model or Escort License. No person shall work as a model at a nude or semi-nude model studio or as an escort as defined herein until at least 14 days after having obtained a nontransferable model or escort license from the Administrator. The process and information requirements shall be the same as that for sexually oriented business permits, except that the nonrefundable processing fee shall be $125.00 and the annual license fee shall be $200.00 or, in both cases, as otherwise stipulated in DMC Title 2. The purpose of the fees is to offset the cost of administering this chapter. Nonpayment of annual fee on the annual due date shall render the license immediately null and void. No one under 18 years of age may hold a model or escort license. Models and escorts shall post their licenses in their work areas so that the licenses are readily available for public inspection. (Ord. 97-564 § 5; Ord. 12-943 § 5. Formerly 5.04.060).
5.05.070 Appeals of permit or license denials.
(a) When the Administrator refuses to grant a license or permit, he/she shall notify the applicant in writing, describing the reasons therefor, and shall inform the applicant of his right to appeal to the City Council within 10 days of the date of the written notice by filing a written appeal with the Administrator containing a statement of the specific reasons and the relief requested.
(b) Within 10 days of receiving a timely appeal, the Administrator shall forward the administrative record of the permitting or licensing decision to the City Council.
(c) The City Council shall review the administrative record at the next regularly scheduled meeting for which proper notice can be given. The Administrator shall notify the applicant in writing of the date and time of the meeting.
(d) The applicant and Administrator shall be given an opportunity to argue the merits of the appeal before the City Council. Oral argument by each party shall be limited to the administrative record before the Council. New evidence shall not be presented.
(e) The City Council shall uphold the Administrator’s decision unless it finds the decision is not supported by substantial evidence in the administrative record. The applicant shall bear the burden of proof.
(f) The City Council shall issue a written decision within 10 days of hearing the appeal. The Council may uphold the Administrator’s decision, overrule the Administrator’s decision, or remand the matter to the Administrator for further review. The Administrator shall complete said further review within 30 days of receiving the remand.
(g) Appeal to the City Council shall constitute final administrative review. (Ord. 97-564 § 6; Ord. 12-943 § 5. Formerly 5.04.070).
5.05.080 Suspension or revocation of permits or licenses.
(a) Whenever the Administrator has found that any violation of this chapter has occurred, he or she shall:
(1) Suspend the applicable permit or license for 30 days upon the first violation;
(2) Suspend the applicable permit or license for 90 days upon the second violation;
(3) Revoke the applicable permit or license for one year upon the third or any subsequent violation, or at any time that the permittee or licensee knowingly makes any false or misleading statements to the City. Application for a new license may be made following the expiration of the applicable revocation period.
(b) The suspension or revocation shall be immediately effective unless a stay thereof is specifically requested in the written request for a hearing.
(c) The Administrator shall promptly issue to the permittee or licensee a notice of violation and suspension or revocation (“notice”) including:
(1) Name(s) of person(s) involved;
(2) Description of the violation(s), including date and provision violated;
(3) Description of the administrative action taken;
(4) Rights of appeal as set forth above.
(d) The notice shall be served either personally or by mailing a copy by certified mail, postage prepaid, return receipt requested, to the permittee or licensee at his or her last known address. Proof of personal 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.
(e) The permittee or licensee may, within 10 days of personal service of notice, or 15 days of mailing of the notice, file with the Administrator a written request for hearing specifying the reason(s) for the appeal.
(f) The Administrator shall have the burden to prove, by a preponderance of the evidence, that the identified violation(s) occurred.
(g) In all other respects, the appeal procedure shall be the same as that of appealing a permit or license denial.
(h) Either party may seek judicial review of a final decision of the City Council as provided by law. (Ord. 97-564 § 7; Ord. 12-943 § 5. Formerly 5.04.080).
5.05.090 Adult cabarets.
(a) Sexually oriented adult entertainment shall be performed on a stage or platform separated from all patron seating areas in the following ways:
(1) At least 24 inches in elevation above;
(2) Separated by a distance of at least 10 feet horizontally; and
(3) Having a continuous railing at least three feet in height, extending from the floor, and located at least 10 feet from all points of the stage or platform.
(b) No employee or entertainer shall appear nude or semi-nude on any part of the premises open to view of members of the public, except on or in the above-described stage or platform.
(c) No patron or customer shall go into or upon the above-described stage or platform while sexually oriented entertainment is being performed.
(d) All parts of the premises open to patrons shall be lit so that all objects are plainly visible at all times, and so that on any a program, menu, or list printed in eight-point type will be readable.
(e) A licensed manager other than an entertainer shall be on duty at an adult cabaret during all business hours. The manager shall verify that any entertainer who works or appears within the premises possesses a valid and posted entertainer’s license.
(f) No member of the public or employee or entertainer shall allow, encourage, or knowingly permit any person upon the premises to touch, caress, or fondle the breasts, buttocks, anus, pubic area, or genitals of any other person.
(g) No member of the public or employee or entertainer shall allow, encourage, or permit physical contact between an employee or entertainer and any member of the public, which contact is intended to arouse or excite sexual desires.
(h) No employee or entertainer shall perform acts of or acts which simulate sexual intercourse, masturbation, bestiality, sodomy, oral copulation, flagellation, or any sexual acts which are prohibited by law, or which simulate the touching, caressing, or fondling of the breasts, buttocks, pubic area, or genitals, nor shall any employee or entertainer use artificial devices or inanimate objects to depict any of said prohibited activities.
(i) No entertainer of an adult cabaret shall be visible from any public place outside the premises during the actual or apparent hours of his or her employment or performance on the premises.
(j) No entertainer employed or otherwise working at an adult cabaret shall solicit, demand, accept, or receive any gratuity or other payment from a patron, customer, or member of the public.
(k) No customer or patron of an adult cabaret shall give or otherwise provide an entertainer with a gratuity or other payment.
(l) Signs in lettering at least three-quarters inch high shall be conspicuously displayed in the public area of the establishment stating the following:
This adult cabaret is regulated by the City of DuPont. Entertainers are not permitted to:
Engage in any type of sexual conduct;
Appear nude or semi-nude, except on stage;
Dance or model where patrons are congregated;
Solicit, demand, accept, or receive any gratuity or other payment from a patron.
(m) At any adult cabaret featuring live performances involving the exposure of “specified anatomical areas” or “specified sexual activities,” admission shall be restricted to persons 18 years of age or older. (Ord. 97-564 § 8; Ord. 12-943 § 5. Formerly 5.04.090).
5.05.100 Adult arcades.
All adult arcades and adult bookstores having facilities for customers’ viewing of depictions of human nudity and/or sexual conduct of any nature, including depictions of specified sexual activities, shall comply with the following regulations:
(a) The viewing areas within the sexually oriented viewing booth shall be visible from a continuous main aisle and shall not be obscured by any curtain, door, wall or other enclosure. “Viewing area” means the area where a patron or customer would ordinarily be positioned while watching a film, video or other viewing device.
(b) The permittee shall not allow any doors to public areas on the premises to be locked during business hours.
(c) Sexually oriented adult viewing booths shall be lit so that all objects are plainly visible at all times, and so that on any a program, menu, or list printed in eight-point type will be readable.
(d) The permittee shall not permit more than one person to occupy an adult arcade station or viewing booth at any time and shall conspicuously post public notices to this effect.
(e) There must be at least one employee on duty and situated in the public room adjacent to the adult arcade stations or viewing booths at all times that any patron, member, or customer is on the premises.
(f) There must be permanently posted and maintained in at least two conspicuous locations on the interior of every adult arcade premises a sign, the letters of which shall be on a contrasting background and no smaller than three-quarters inch high, stating substantially the following: “Occupancy of any station or viewing booth is at all times limited to one person. There may be no acts of lewd or obscene conduct in the stations or viewing booths or on the premises. Violators are subject to criminal prosecution.”
(g) The direct view into the adult arcade viewing booths or stations from the adjacent public room must remain unobstructed by any doors, walls, merchandise, display racks or other materials at all times.
(h) No patron, member, or customer shall be permitted to any area of the premises which has not been designated for the public.
(i) No adult arcade viewing booth or station may be occupied by more than one person at any time.
(j) There shall be no acts of lewd or obscene conduct in the adult arcade stations or viewing booths or on the premises.
(k) No person may operate, conspire to operate, or maintain any system or device for warning patrons or customers that police officers or fire or building inspectors are approaching.
(l) No person under 18 years of age, whether patron, member, customer, agent, employee, or independent contractor, shall enter an adult arcade booth.
(m) Restrooms may not contain video reproduction equipment.
(n) No steps or risers are allowed in any adult arcade viewing booth or station.
(o) No adult arcade station or viewing booth shall have more than one stool-type seat. In order to prevent obscuring the occupant of an adult arcade station or viewing booth from view, no stool for seating therein shall have any back or sides. The seat cannot be positioned behind the doorway so that the occupant sits with his or her back to the door.
(p) All ventilation devices between the adult arcade viewing booths must be covered by a permanently affixed ventilation cover. Ventilation holes may only be located one foot from the top of the viewing booth walls or one foot from the bottom of the viewing booth walls. There may not be any other holes or openings between the viewing booths. (Ord. 97-564 § 9; Ord. 12-943 § 5. Formerly 5.04.100).
5.05.110 Video stores other than sexually oriented businesses.
Video stores, one percent to 20 percent of the stock-in-trade or revenues of which comes from the rental, sale, or distribution of films, motion pictures, video cassettes, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas, shall be subject to the following regulations:
(a) All such items described above shall be physically segregated and closed off from other portions of the store such that these items are not visible 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 20 feet shall be posted at the entrance to the area where such items are displayed stating that persons under the age of 18 are not allowed.
(d) The manager or attendant shall take reasonable steps to ensure that persons under 18 years of age do not access the age-restricted area, and shall check identification of persons appearing to be 18 or under to insure that such items are not rented or sold to them.
(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 18 years of age is prohibited. (Ord. 97-564 § 10; Ord. 12-943 § 5. Formerly 5.04.110).
5.05.120 Adult bookstores not “adult arcades.
” In addition to locating in the industry zone, an adult bookstore not meeting the definition of “adult arcade” may locate in the commercial or mixed use zones, as established in the chapters of this title so titled; provided said adult bookstore is at least 1,200 feet distant from any other adult bookstore, and at least 600 feet distant from any existing church or school. Such distances shall be measured in a straight line from the nearest property line of proposed adult bookstore location to the nearest property line of the other stated use. (Ord. 97-564 § 11; Ord. 12-943 § 5. Formerly 5.04.120).
5.05.130 Exterior depictions of nudity prohibited.
The facades, exteriors, and signs of sexually oriented businesses shall not depict nude or semi-nude males or females. (Ord. 97-564 § 12; Ord. 12-943 § 5. Formerly 5.04.130).
5.05.140 Parking and exterior lighting.
(a) All on-site parking areas and premises entries of sexually oriented businesses shall be illuminated from dusk until one hour past the business’s closing time sufficiently to illuminate and make visible the parking surface, walkways, and entries.
(b) All parking shall be visible from the fronting street.
(c) Access to the exterior rear of the building shall be denied to any persons other than employees and public officials during the performance of their respective duties and tasks. (Ord. 97-564 § 13; Ord. 12-943 § 5. Formerly 5.04.140).
5.05.150 Only one sexually oriented business per building.
No more than one sexually oriented business shall operate in the same building, and no nonsexually oriented business shall operate in the same building in which a sexually oriented business operates. (Ord. 97-564 § 14; Ord. 12-943 § 5. Formerly 5.04.150).
5.05.160 Hours of operation.
No sexually oriented business, except adult motels, shall be conducted, operated, or otherwise open to the public between the hours of 2:00 a.m. and 11:30 a.m. (Ord. 97-564 § 15; Ord. 12-943 § 5. Formerly 5.04.160).
5.05.170 Recordkeeping.
(a) Within 30 days following the end of each calendar quarter, each sexually oriented business permittee shall file with the Administrator a verified report showing the permittee’s gross receipts and amounts paid to entertainers, models, or escorts, if applicable, for the preceding calendar year.
(b) Each sexually oriented business permittee shall maintain and retain for a period of two years beyond the last date of employment the full name, date of birth, address, age and driver’s license number of all persons employed or otherwise retained as entertainers, models, and escorts by the permittee. (Ord. 97-564 § 16; Ord. 12-943 § 5. Formerly 5.04.170).
5.05.180 Inspections.
(a) All records required to be kept pursuant to this chapter shall be open to inspection by the Administrator during the hours when the premises are open for business upon two days’ written notice to the permittee. The purpose of such inspection shall be to determine if the records meet the requirements of this chapter.
(b) Sexually oriented businesses shall, as a condition of receiving a sexually oriented business permit, be open to inspection by the Administrator during its business hours. The purpose of such inspection shall be to determine if the business is operated in accordance with this chapter. Unannounced inspections are necessary to insure compliance. (Ord. 97-564 § 17; Ord. 12-943 § 5. Formerly 5.04.180).
5.05.190 Exemptions for modeling.
(a) It is a defense to prosecution under this chapter that a person appearing in a state of nudity or semi-nudity did so in a modeling class operated by a State-licensed or State-supported school, college, or university, or a private school or college from which credits are transferable to a State-licensed or State-supported college, junior college, or university.
(b) It is a defense to prosecution under this chapter that a person appearing in a state of semi-nudity was modeling clothing or lingerie in a full-service restaurant where no consideration was charged, directly or indirectly, and the model did not expose specified anatomical areas. (Ord. 97-564 § 18; Ord. 12-943 § 5. Formerly 5.04.190).
5.05.200 Public nuisance, moral nuisance, injunctions.
(a) Sexually oriented businesses in violation of this chapter shall be deemed a public nuisance, which, in addition to all other remedies, may be abated by injunctive relief.
(b) Chapter 7.48 RCW pertaining to moral nuisances is hereby adopted by reference. (Ord. 97-564 § 19; Ord. 12-943 § 5. Formerly 5.04.200).
5.05.210 Limitation of liability.
Nothing in this chapter is intended to create a cause of action or provide the basis for a claim against the City, its officials, or employees for the performance or the failure to perform a duty or obligation running to a specific individual(s). Any duty or obligation created herein is intended to be a general duty or obligation running in favor of the general public. (Ord. 97-564 § 20; Ord. 12-943 § 5. Formerly 5.04.210).
5.05.220 Violation--Penalty.
Any person violating any provision(s) of this chapter shall be guilty of a gross misdemeanor. Any person convicted of such a violation shall be punished by a fine of not more than $5,000 or a jail term of not more than one year, or both. Each such person is guilty of a separate misdemeanor for each and every day which any violation of this chapter is committed, continued, or permitted by any such person and said person shall be punished accordingly. Any persons violating any of the provisions of this chapter shall also be subjected to license suspension or revocation as set forth herein. (Ord. 97-564 § 21; Ord. 12-943 § 5. Formerly 5.04.220).