Chapter 6.72
ADULT ENTERTAINMENT LICENSES

Sections:

6.72.010    Purpose and intent.

6.72.020    Findings of fact.

6.72.030    Application of other provisions.

6.72.040    Applicability.

6.72.050    Exemptions.

6.72.060    Definitions.

6.72.070    License required – Adult entertainment premises, adult entertainer, adult entertainment premises manager(s), adult arcade device, adult arcade premises, and adult arcade manager.

6.72.080    License applications.

6.72.090    License – Applicant investigation.

6.72.100    Issuance of licenses.

6.72.110    License fees – Term – Assignment – Renewals.

6.72.120    License – Posting and displaying.

6.72.130    License nontransferable.

6.72.140    Suspension or revocation of licenses – Notice – Summary suspension.

6.72.150    Appeal and hearing.

6.72.160    Adult entertainment premises – Standards of conduct and operation.

6.72.170    Adult arcade – Standards of conduct and operational requirements.

6.72.180    Interior configurations and operation of adult arcade premises.

6.72.190    Hours of operation.

6.72.200    Persons under 18 years of age prohibited.

6.72.210    Inspections.

6.72.220    Alcoholic beverages and controlled substances prohibited.

6.72.230    Record keeping requirements.

6.72.240    Public nuisance.

6.72.250    Moral nuisance.

6.72.260    Violation – Penalty.

6.72.270    Additional enforcement.

6.72.280    Ordinance not intended towards particular group or class.

6.72.010 Purpose and intent.

The purpose and intent of the Ellensburg city council in enacting the ordinance codified in this chapter is to maintain and protect the health, safety and welfare of its citizens through the regulation of the operations of adult entertainment uses and adult arcade premises. The regulations set forth herein are intended to prevent health and safety problems and dangerous and unlawful conduct in and around such uses and premises. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.010.]

6.72.020 Findings of fact.

Based upon a wide range of evidence presented to the Ellensburg planning commission and city council and to other jurisdictions, including but not limited to the testimony of members of the public, and on other evidence, information, publications, articles, studies, documents, case law and material submitted to and reviewed and considered by the city council and staff, the councils of other cities and in other jurisdictions, nonprofit organizations and other legislative bodies, the city council makes the following findings:

A.    Certain conduct occurring on premises offering adult entertainment creates secondary impacts that are detrimental to the public health, safety and general welfare of the citizens of the city, and therefore such conduct must be regulated as provided herein.

B.    Regulation of the adult entertainment industry is necessary because, in the absence of such regulation, significant criminal activity has historically and regularly occurred.

C.    It is necessary to license entertainers in the adult entertainment industry to prevent the exploitation of minors; to ensure that each such entertainer is an adult; and to ensure that such entertainers have not assumed a false name, which would make regulation of the entertainer difficult or impossible.

D.    It is necessary to have a licensed manager on the premises of establishments offering adult entertainment at such times as such establishments are offering adult entertainment so that there will at all necessary times be an individual responsible for the overall operation of the establishment, including the actions of patrons, entertainers and other employees.

E.    The license fees required herein are nominal fees imposed as necessary cost measures designed to help defray the substantial expenses incurred by the city in regulating the adult entertainment industry.

F.    Businesses providing adult entertainment are increasingly associated with ongoing prostitution, disruptive conduct and other criminal activity. Such businesses are currently not subject to effective regulation and constitute an immediate threat to the public peace, health and safety. The hours of operation of such businesses have a significant impact on the occurrence of criminal activity.

G.    Due to the information presented regarding the connection of prostitution with adult entertainment, there is concern over sexually transmitted diseases, which is a legitimate health concern of the city and thus requires regulation of adult entertainment businesses in order to protect the health, safety and well-being of the public.

H.    Many cities, including Seattle and Tacoma, have experienced negative secondary impacts from adult entertainment land uses. The skid row effect is one of these secondary impacts and is evident in certain parts of Seattle. Such an effect would be significantly magnified in Ellensburg due to the difference in size and characteristics of the city.

I.    The city of Ellensburg may rely on the experiences and studies of other cities and organizations in assessing the need for regulation of adult entertainment uses, operations and licensing.

J.    Regulation of adult entertainment should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than in response to an existing problem.

K.    Increased levels of criminal activities occur in the vicinity of adult entertainment.

L.    The city council therefore finds that the protection and the preservation of the public health, safety and welfare requires establishment of this chapter. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.020.]

6.72.030 Application of other provisions.

The licenses provided for in this chapter are also subject to the general provisions of the city’s business licenses and regulations code, set forth in this title as now or hereafter amended. In the event of a conflict between the provisions of this title and this chapter, the provisions of this chapter shall control. The licensing required in this chapter is in addition to any general business licensing that may be required under Chapter 6.54 ECC. [Ord. 4774 § 10, 2017; Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.030.]

6.72.040 Applicability.

This chapter shall constitute the exclusive means of licensing “adult entertainment premises,” “adult entertainers,” “adult entertainment premises managers,” “adult arcade premises,” or “adult arcade devices” and, except for the city’s business licenses and regulations code, no other city of Ellensburg licensing provisions shall apply to the subject matter licensed under this chapter. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.040.]

6.72.050 Exemptions.

This chapter shall not be construed to prohibit:

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

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

C.    Exhibitions, performances, expression or dances that are not obscene. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.050.]

6.72.060 Definitions.

For the purposes of this chapter and unless otherwise apparent from the context, certain words and phrases used in this chapter are defined as follows:

“Adult arcade” or “adult arcade premises” means any premises on which any adult arcade device is located and to which patrons, customers and/or members of the public are admitted.

“Adult arcade device,” sometimes also known as “panoram,” “preview,” “picture arcade,” or “peep show” means any device which, for payment of a fee, membership fee, or other charge, is used to exhibit or display a picture, view, film, videotape, videodisc, or similar reproduction means, a live show or other graphic display of “specified anatomical areas” or “specific sexual activities.” All such devices are denominated under this chapter by the term “adult arcade device.”

“Adult arcade manager” means any person who manages, operates, directs, administers, or is in charge of the affairs and/or conduct of any adult arcade premises.

“Adult arcade owner” means any person who owns and/or has a substantial ownership interest in an adult arcade or adult premises.

“Adult arcade station or booth” means such enclosures where a patron, member, or customer would ordinarily be positioned while using an adult arcade device or viewing a live show. An “adult arcade station or booth” shall also refer to the area in which an adult arcade device is located and from which the adult arcade picture, view, live show or graphic display is to be viewed. The words “adult arcade station or booth” do not mean such enclosures that are private offices used by owners, managers, or persons employed on the premises for attending to the tasks of their employment, which enclosures are not held open to the patron, members or public for use, for hire or for a fee for the purpose of viewing the entertainment provided by the arcade device or live show, and are not open to any persons other than employees. For the purposes of this definition, the words “open to an adjacent public room so that the area inside is visible to persons in the adjacent room” mean that there may be no door, curtain, partition or other device extending from the floor to the top of the door frame with the exception of a door which is completely transparent and constructed of safety glass as specified in the International Building Code so that the activity and occupant inside the enclosure may be clearly and easily viewed or seen by persons outside the enclosure from any point in the adjacent public room.

“Adult cabaret” means a nightclub, bar, restaurant, tavern, or similar commercial establishment, whether or not alcoholic beverages are served, that features adult entertainment.

“Adult entertainment” means any exhibition, dance of any type, or other performance, not exempt from this chapter where such entertainment involves a person appearing or performing (either live or re-created) who:

1.    Is unclothed or in such attire, costume or clothing as to expose to view any portion of the nipple or areola of the female breast, or (without regard to gender) any portion of the pubic region, anus or genitals; or

2.    Touches, caresses or fondles the breasts, buttocks, anus, genitals or pubic region of themselves or a patron, or any other person, or permits the touching, caressing or fondling of their own breasts, buttocks, anus, genitals or pubic region by a patron, another employee or anyone else with the intent to sexually arouse or excite.

“Adult entertainment premises” or “adult entertainment business” means a commercial establishment defined herein as an adult arcade, adult cabaret, adult theater, adult retail store, or other adult entertainment facility.

“Adult retail store” means a commercial establishment such as a bookstore, video store, or novelty shop which as a principal business purpose offers for sale or rent, for any form of consideration, any one or more of the following:

1.    Books, magazines, periodicals or other printed materials, or photographs, films, motion pictures, video cassettes, slides, or other visual representations that are distinguished or characterized by a predominant emphasis or matters depicting, describing, or simulating any specified sexual activities or specified anatomical areas; or

2.    Instruments, devices, or paraphernalia designed for use in connection with any specified sexual activities.

For the purpose of this definition, the term “principal business purpose” shall mean a business purpose that constitutes 25 percent or more of the stock in trade of a particular business establishment. The stock in trade of a particular business establishment shall be determined by examining either: (a) the retail dollar value of all sexually oriented materials compared to the retail dollar value of all nonsexually oriented materials readily available for purchase, rental, view, or use by patrons of the establishment, excluding inventory located in any portion of the premises not regularly open to patrons; or (b) the total volume of shelf space and display area reserved for sexually oriented materials compared to the total volume of shelf space and display area reserved for nonsexually oriented materials.

“City” means the incorporated city of Ellensburg, county of Kittitas, state of Washington, and its appointed or elected officials.

“City clerk” means the city clerk of Ellensburg or his/her designee.

“Employee” means any and all persons, including managers, entertainers and independent contractors providing adult entertainment services, who work in or at or render any services directly related to the operation of an adult entertainment premises.

“Entertainer” means any person who provides adult entertainment for an adult entertainment premises as defined in this section, whether or not a fee is charged or accepted for entertainment.

“Entertainment” means any exhibition or dance of any type, pantomime, modeling or any other performance.

“Manager” means any person who manages, directs, administers, or is in charge of the affairs and/or conduct of any portion of any activity involving adult entertainment occurring at any adult entertainment premises.

“Massage” means the method, art or science of treating the human body for hygienic, remedial or relaxational purposes by rubbing, stroking, kneading, tapping, rolling or manipulating the human body of another with the hands, or by any other agency or instrumentality. Manipulation of the human body in the course of the practice of medicine, surgery, osteopathy, chiropractic, chiropody, naturopathy, dentistry, nursing, physical therapy, optometry or any other of the healing arts by persons licensed by the state to practice such healing arts is not included in the term “massage” as used herein.

“Massage parlor” means any premises where massages are given or furnished for, or in expectation of, any fee, compensation or monetary consideration, except:

1.    Facilities adjunct to athletic clubs, health clubs, medical facilities, hotels, motels or beauty salons; and

2.    Enterprises licensed by the state and operating as approved home occupations.

“Nudity” means unclothed, or the showing of the human genitals, pubic region, vulva or anus with less than a fully opaque covering, the showing of any female breast with less than a fully opaque covering of any part of the nipple or areola, or the showing of covered male genitals in a discernibly turgid state.

“Obscenity” shall mean any matter:

1.    Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the prurient interest; or

2.    Which explicitly depicts or describes patently offensive representations or descriptions of:

a.    Ultimate sexual acts, normal or perverted, actual or simulated; or

b.    Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital areas; or

c.    Violent or destructive sexual acts, including but not limited to human and/or animal mutilation, dismemberment, rape and/or torture; or

d.    Has a dominant theme which appeals to the prurient interests of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the description of representation of sexual matters or sadomasochistic abuse; and

e.    Which, when considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political, or scientific value.

“Operator” means any person operating, conducting, or maintaining an adult entertainment business.

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

“Person” means any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons, however organized.

“Public place” means any area generally visible to public view and includes but is not limited to streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, and automobiles, whether moving or not.

“Secondary effects” means increase in prostitution, sexually transmitted disease, drug and alcohol offenses and other criminal activity.

“Specified anatomical areas” means:

1.    Less than completely and opaquely covered:

a.    Human genitals, pubic region; or

b.    Human anus; or

c.    Female breast, exposing any part of the nipple, or areola; or

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

“Specified sexual activities” means:

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

2.    Acts of human masturbation, sexual intercourse, sodomy or bestiality; or

3.    Fondling or other erotic touching of human genitals, pubic region, human anus or female breast.

“Theater” means a place of public assembly intended and expressly designed for the presentation of motion pictures, other than an adult theater.

“Theater, adult” means a place of public assembly at which motion pictures, slides, video, films or any other method of visual media are presented which are distinguished or characterized by depicting, describing or relating to “specified sexual activities” or “specified anatomical areas,” as defined in this section, for observation by patrons therein. This shall not include movies that have been rated G, PG-13, NC-13, NC-17, or R by the Motion Picture Association of America. [Ord. 4656 § 3, 2013; Ord. 4348, 2002; Ord. 4212, 1999. Formerly 13.49.060]

6.72.070 License required – Adult entertainment premises, adult entertainer, adult entertainment premises manager(s), adult arcade device, adult arcade premises, and adult arcade manager.

A.    Adult Entertainment Premises and Adult Arcade Premises.

1.    It is unlawful for any person to operate or maintain an adult entertainment premises or adult arcade in the city of Ellensburg unless the owner, operator or lessee thereof has obtained an adult entertainment premises license or adult arcade premises license from the city clerk to do so.

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

B.    Adult Arcade Premises and Devices.

1.    It is unlawful to display, exhibit, expose or maintain upon any premises to which members of the public are admitted any adult arcade device without a valid and current license for both the device and the premises, to be designated an “adult arcade device license,” and an “adult arcade premises license,” respectively.

2.    It is unlawful to own and exhibit or display for public use, or to place with another, by lease or otherwise, for public use, exhibit or display, any adult arcade device without a valid and current license, which license shall be an “adult arcade device license.”

C.    License for Adult Entertainment Premises or Adult Arcade Premises Manager and Entertainer. It is unlawful for any person to work as an entertainer or manager at an adult entertainment premises or adult arcade without having first obtained from the city clerk a license to do so, which license shall be designated as an “adult entertainer’s license,” an “adult entertainment manager’s license,” or an “adult arcade manager’s license.” [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.070]

6.72.080 License applications.

A.    Adult Entertainment Premises and Adult Arcade Premises License. All applications for an adult entertainment premises or adult arcade premises license shall be submitted in the name of the person proposing to conduct the operations on the premises and shall be signed by such person and notarized or certified as true and correct under penalty of perjury. All applications shall be submitted on a form supplied by the city clerk, and shall require the following information:

1.    The name, residence address, home telephone number, date of birth, and Social Security number of the applicant;

2.    The business name, address and telephone number of the establishment;

3.    The names, residence addresses, residence telephone numbers, Social Security numbers and dates of birth of any partners, corporate officers or director of any entity holding an ownership, or leasehold interest in the adult entertainment premises, the adult arcade premises and/or any adult arcade devices on the premises;

4.    Such additional information as the city clerk may require concerning the identity of corporate shareholders identified in subsection (A)(3) of this section;

5.    A description of the adult entertainment, arcade or similar business history of the applicant, including whether such person or entity, in previously operating in this or another city, county or state, has had a business license revoked or suspended, the reason therefor, and the activity or occupation subjected to such action, suspension or revocation;

6.    The name, address, telephone number, date of birth and Social Security number of the manager or other persons responsible for the operation of the premises and/or arcade devices;

7.    A complete statement of all convictions of the applicant (or the owners listed in subsection (A)(3) of this section) in any domestic or foreign jurisdiction for or equivalent to promoting prostitution; sexual violations with minors; perjury; sales of controlled substances; violations involving organized crime or crimes connected with another adult entertainment premises;

8.    The number of and description of each adult arcade device to be located on the premises including make, model and serial number of all adult arcade devices;

9.    A sketch or drawing sufficient to show the layout of the premises containing any adult arcade devices, including all information necessary to determine whether the premises comply with the provisions of this chapter and any state, local or federal regulations.

B.    Adult Arcade Device License. Complete application for an adult arcade device license shall be submitted in the name of the device’s owner, and shall contain all of the information contained in subsection (A) of this section.

C.    Manager’s or Entertainer’s License. All complete applications for an adult entertainment manager’s license or adult arcade manager’s license or adult entertainer’s license shall be signed by the applicant and notarized or certified as true under penalty of perjury. All applications shall be complete and submitted on a form supplied by the city clerk, and shall require the following information:

1.    The applicant’s name, home address, home telephone number, date and place of birth, Social Security number, and any stage names or nicknames used in entertaining or aliases;

2.    The name and address of each business at which the applicant intends to work as a manager or entertainer;

3.    The name and address of each employer or individual or business for whom the applicant was an employee or independent contractor for the three-year period immediately prior to the date of the complete application, including the period of such employment;

4.    A complete statement of all convictions of the applicant (or the owners) for promoting prostitution; sexual violations with minors, sexual abuse, rape, distribution of obscenity or material harmful to minors; perjury; sales of controlled substances; violations involving organized crime or crimes connected with another adult entertainment premises;

5.    Supplemental information and/or identification deemed necessary by the city to confirm any statements set forth in the application.

D.    Additional Requirements. In addition to the above, each applicant for licenses described in this section shall provide authorization for the city, its agents and employees, to verify and confirm any statements set forth in the application.

E.    Failure to Provide Information. Failure to provide information required by this section will constitute an incomplete application and will not be processed. The applicant shall be responsible for verifying any information in the application to the city’s reasonable satisfaction.

F.    Proof of Age. All applicants for any license required herein shall be at least 18 years of age and shall present appropriate documentation of the same. Any of the following shall be accepted as documentation of age:

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

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

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

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

5.    Any other picture identification issued by a governmental entity bearing the applicant’s photograph and date of birth. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.080]

6.72.090 License – Applicant investigation.

A.    The original complete application shall be filed with the city clerk. In order to confirm identity, all applicants shall also at that time provide, through the Ellensburg police department, a complete set of fingerprints. The cost of obtaining such fingerprints shall be the responsibility of the applicant, but should be included in the application fee. The name, location and type of business conducted shall be published in the local paper and/or the city’s official paper and copies shall be referred to the planning, building, fire marshal, or other appropriate departments. The departments shall review the completed application and inspect the premises proposed to be operated as an adult entertainment premises or adult arcade premises and shall make written verification to the city clerk that such applicant and premises comply with the codes of the city. No license may be issued without such verification. The completed application shall also be referred to the police department for criminal records check and verification of the information provided by the applicant.

B.    The investigation by the Ellensburg police department, building department and any other staff necessary to assure compliance shall include a review of all criminal records of the applicant. Further, the investigation shall consist of investigation of the truth of the statements in the completed application, a review of location and surroundings, and all other matters which might tend to aid in the determination of compliance with the code and whether to grant the license. The departments shall then inform the city clerk as to the results of the investigation and the recommendation as to the disposition of said application.

C.    The devices licensed under this chapter and those areas upon the premises which are accessible to the public shall be held open for routine regulatory inspections by the city during normal business hours. [Ord. 4656 § 3, 2013; Ord. 4566 § 29, 2010; Ord. 4212, 1999. Formerly 13.49.090]

6.72.100 Issuance of licenses.

A.    After review and approval of the completed application by all of the appropriate city departments, the city clerk shall issue the applicable license or licenses authorized by this chapter if the city finds:

1.    That the business for which a license is required herein will be conducted in a building, structure and location which complies with the requirements and meets the standards of the applicable health, zoning, building, fire and safety laws of the state, the ordinances of the city, as well as the requirements of this chapter and any other applicable codes;

2.    That the applicant, his or her employee, agent, partner, director, officer, stockholder or manager has not knowingly made any false, misleading or fraudulent statement of material fact in the application for a license, or in any report or record required to be filed with the city;

3.    That the applicant, his or her employees, agents, partners, directors, officers or managers of the applicant have satisfactorily met all of the requirements in this chapter to obtain such a license.

B.    If the requirements of this chapter are met for the particular license, the city clerk shall issue such license applied for in accordance with the provisions of this chapter; provided, however, that the applicable license fee, together with any delinquent fees that may then be due, shall first be paid to the city.

C.    No license shall be issued pursuant to the provisions of this title to the following persons:

1.    Applicant, his or her employees, agent, partner, director, officer or manager who knowingly made any false, misleading or fraudulent statement of material fact in the application for a license, or in any report or record required for a license, or in any report required to be filed with the city;

2.    Any person who is not 18 years of age at the time of the application;

3.    Any person who has had a similar license revoked within a period of one year prior to the date of making application for a license hereunder;

4.    Any applicant, his/her employees, agent, partner, director, officer, manager, or person holding an ownership interest in the business convicted of any of the crimes listed in this chapter or crimes connected with organized crime;

5.    Any person who at the time of application is in default in the payment of any sum due the city of Ellensburg for any license, tax or assessment as a result of the adult entertainment business;

6.    Any person whose adult entertainment license is under suspension or revocation at the time of application for a license;

7.    Any partner, corporate officer or director who does not meet the qualifications of this chapter.

No license shall be issued unless the premises where the activity is to be conducted, as well as the individuals and devices therein, each comply with the requirement standards of operation and conduct of this code and any related state, city and federal regulations.

D.    The mere filing of an application for a license shall not give the applicant any right to engage in the activity covered thereby.

E.    Issuance of any license shall be rendered within 45 days of the date of filing of the completed application, unless an extension is requested by the applicant or the city for good cause. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.100]

6.72.110 License fees – Term – Assignment – Renewals.

A.    The license year shall be from January 1st to December 31st of each year and shall not be prorated. All licenses shall expire on the thirty-first of December each year. Except as hereinafter provided, all license fees shall be established by resolution of the Ellensburg city council and be payable on an annual basis.

B.    Complete application for renewal of licenses issued under this chapter shall be filed and paid to the city clerk on or before January 31st of the license year in the same manner and accompanied by payment of the same fees as are in effect for an original application for that license for the license year applied for. There shall be assessed and collected by the city clerk an additional charge, computed as a percentage of the license fee, on renewal applications not made on or before the license expiration date, as follows:

1.    One to 10 days inclusive: no penalty;

2.    Eleven days to 30 days inclusive: a penalty of 10 percent of the license fee;

3.    Over 30 days: canceled. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.110]

6.72.120 License – Posting and displaying.

A.    Every adult entertainer shall post his or her license in his or her work area so it is readily available for inspection by city authorities responsible for enforcement of this chapter.

B.    Every person, corporation, partnership, or association licensed under this chapter as an adult entertainment premises, adult arcade premises, adult entertainment manager or adult arcade manager shall post such license in a conspicuous place and manner on the licensed premises.

C.    A separate license is required for each adult arcade device and the device license shall be attached to the device in a conspicuous place. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.120]

6.72.130 License nontransferable.

No license shall be transferable. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.130]

6.72.140 Suspension or revocation of licenses – Notice – Summary suspension.

A.    After investigation and upon the recommendation of the Ellensburg police department, director of community development, Ellensburg fire marshal, and/or the Kittitas County health official or other law enforcement or government agencies, the city may, upon 30 days’ notice, suspend or revoke any license issued pursuant to this chapter where one or more of the following conditions exists:

1.    The license was procured by fraud or misrepresentation or that the applicant, his or her agent, partner, director, officer or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for a license, or in any report or records required to be filed with the city; or

2.    The licensee, his/her employee, agent, partner, director, officer or manager has violated any provision of this title or knowingly allowed or permitted in or upon the premises any violations of this chapter or acts made unlawful under the same; or

3.    The building, structure, equipment or location of the business for which the license was issued does not comply with the requirements or fails to meet the standards of this chapter; or

4.    Any reason set forth in ECC 6.72.100 as now or hereafter amended.

B.    If the city finds that any condition set forth above exists, and that such condition constitutes a threat of imminent serious injury or damage to person or property, the city shall immediately suspend any license issued under the chapter pending an investigation. The notice of immediate suspension of license given pursuant to this subsection shall set forth the basis for the city’s action and the facts supporting the city’s finding regarding the condition found to exist that constitutes a threat of imminent serious injury or damage to person or property. Notice shall be by personal service or registered mail and shall be effective immediately upon receipt or three days after mailing, whichever occurs first. [Ord. 4656 § 3, 2013; Ord. 4566 § 30, 2010; Ord. 4212, 1999. Formerly 13.49.140]

6.72.150 Appeal and hearing.

A.    Any person aggrieved by the action of the city in issuing, refusing to issue or renew any license under this chapter or in suspending or revoking any license issued under this chapter shall have the right to appeal such action to the hearing examiner, or to such other hearing body as may hereafter be established by the city council for the hearing of such appeals, by filing a notice of appeal with the city clerk within 10 calendar days after receiving notice of the action from which appeal is taken.

B.    The hearing examiner, or other hearing body as may hereafter be established by the city council, upon receipt of a timely appeal, shall set a date for a hearing of such appeal within 30 calendar days from receipt, except emergency suspension shall be within five days of receipt. The hearing examiner, or other body, shall hear testimony, take evidence, and may hear oral argument and receive written briefs. Except in cases of summary suspension of licenses because of the threat of imminent serious injury or damage to person or property pursuant to this title, the filing of such appeal shall stay the action of the city, pending the decision of the hearing examiner or other hearing body. In cases of summary suspension of license because of the threat of imminent serious injury or damage to persons or property, the hearing examiner shall render a decision within five days of the conclusion of the hearing. The filing of an appeal of emergency suspension shall not stay the city’s decision.

C.    The decision of the hearing examiner or other hearing body on an appeal from a decision of the city shall be based upon a preponderance of the evidence. The burden of proof shall be on the city.

D.    The decision of the hearing examiner or other hearing body shall be final unless appealed by the filing of an appropriate action to the superior court within 20 days of the date the decision is entered. The appellant shall pay the cost of reproduction of the record transcript. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.150]

6.72.160 Adult entertainment premises – Standards of conduct and operation.

A.    A licensed manager shall be on duty at each adult entertainment premises at all times adult entertainment is being provided and the same shall not be an entertainer. The name of the manager on duty shall be prominently posted during business hours.

B.    It shall be the responsibility of the manager to verify that any person who provides adult entertainment within the premises possesses a current and valid adult entertainer’s license posted in a manner required by this chapter.

C.    The following standards of conduct must be adhered to by employees and entertainers of any adult entertainment or adult arcade premises:

1.    No employee or entertainer shall be unclothed or in less than opaque and complete attire, costume or clothing so as to expose to view any of the “specified anatomical areas” as defined herein, except upon stage at least 18 inches above the immediate floor level and removed at least six feet from the nearest patron.

2.    No employee or entertainer shall perform acts of or acts which simulate:

a.    Sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or any “specified sexual activities” which are prohibited by law;

b.    The touching, caressing, or fondling of the breasts, buttocks, or genitals; or

c.    The displaying of the “specified anatomical areas,” except as provided for in subsection (C)(1) of this section.

3.    No entertainer or employee shall mingle with the patrons, and be unclothed or in less than opaque and complete attire, costume or clothing except as described in subsection (C)(1) of this section. No entertainer or employee shall fondle or caress a patron or another person while on the premises.

4.    No employee or entertainer shall knowingly permit any person upon the premises to touch, caress or fondle the breasts, pubic region, buttocks, anus, vulva or genitals of themselves or of any other person.

5.    No employee or entertainer shall wear or use any device or covering exposed to view which simulates the “specified anatomical areas.”

6.    No employee or entertainer shall use artificial devises or inanimate objects to depict any of the prohibited activities described in this section.

7.    The conduct of any employee or entertainer (as described in subsection (C)(1) of this section) of any adult entertainment premises shall not be visible from any public place outside the adult entertainment premises during hours of its operation. No employee or entertainer of an adult entertainment premises in a state of dress or undress as described in subsection (C)(1) of this section shall be visible from any public place outside the adult entertainment premises during the hours of operation.

8.    No entertainer or employee shall solicit, demand or receive any payment or gratuity from any patron, customer or member of the public other than an admission charge taken at the entrance of the premises.

9.    A sign with letters in 36-point type shall be conspicuously displayed in the common area of the premises, and shall read as follows:

THIS ADULT ENTERTAINMENT ESTABLISHMENT IS REGULATED BY THE CITY OF ELLENSBURG. ENTERTAINERS AND EMPLOYEES ARE:

a. Not permitted to engage in any type of sexual conduct, including fondling or caressing;

b. Not permitted to be unclothed or in less than opaque and complete attire, costume or clothing so as to expose to view the nipple or areola of the female breast, any portion of the pubic region, genitals or vulva and/or anus except upon stage at least eighteen (18") inches from the immediate floor level and removed at least six (6') feet from the nearest patron; and

c. Not permitted to solicit, demand or receive any payment or gratuity from any patron, customer, or member of the public.

10.    No manager, employee or entertainer shall perform or allow performance to take place on the premises unless it is in the “public area of the premises.”

D.    At any adult entertainment premises, the following standards of operation must be adhered to:

1.    Neither the performance nor any photograph, drawing, sketch or other pictorial or graphic representation thereof displaying the nipple or areola of the female breast, or any portion of the pubic region, genitals, vulva or anus may be visible outside of the adult entertainment business.

2.    With the exception of exit illumination, sufficient lighting shall be provided in and about all parts of the premises which are open to and used by the public and shall have an intensity of not less than one foot-candle at floor level.

3.    No person may operate or maintain any warning system or device, of any kind, for the purpose of warning, aiding or abetting the warning of patrons, members, customers, employees or any other persons located on the premises that police officers or health, fire, building or other government officials are approaching or have entered the premises.

4.    All such premises are required to have theater-style seating consisting only of 10 or more upright seats in a row with no tables in between each, with each row of seating directly behind or in front of the next row, with no more than 48 inches between the back of one seat and the back of the seat directly behind and/or in front of it. The front row of seating closest to the performance area shall not violate the six-foot setback requirement. This seating shall resemble the standard seating found in a movie theater or symphony hall. There shall be no couches, lounge chairs, or other similar type of seating located in any area open to the public; there shall only be theater-style seating. “Couch dances” or the equivalent are prohibited. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.160]

6.72.170 Adult arcade – Standards of conduct and operational requirements.

It is the continuing duty of the owner, manager, operator, agent, or employee present in the premises to ensure compliance with this chapter at all times.

A.    There must be at least one employee on duty and situated in the public room adjacent to the adult arcade stations or booths at all times that any patron, member, or customer is present inside the premises.

B.    There must be permanently posted and maintained in at least two conspicuous locations on the interior of every adult arcade premises a sign stating substantially the following:

Occupancy of any station or booth is at all times limited to one person. There may be no acts of lewd or obscene conduct in the stations or booths or on the premises. Violators are subject to criminal prosecution.

C.    While patrons, members or customers are permitted within the premises, the premises must be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place to which patrons, members, or customers are permitted access so that there is intensity of not less than one foot-candle at floor level.

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

E.    The unobstructed view into the adult arcade booths or stations from the adjacent public room by direct line of sight must remain unobstructed by any doors, walls, merchandise, display racks or other materials at all times.

F.    No patron, member, or customer is permitted access to any area of the premises which has been designated as an area in which patrons, members or customers will not be permitted.

G.    No adult arcade booth or station may be occupied by more than one person at a time.

H.    The conduct between entertainers, employees and patrons prohibited in adult entertainment premises in this chapter is also prohibited in adult arcade premises.

I.    No person may operate or maintain any warning system or device, of any nature or kind, for the purpose of warning or aiding and abetting the warning of patrons, members, customers or any other persons occupying adult arcade stations or booths located on the premises that police officers or city health, fire or building inspectors are approaching or have entered the premises. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.170]

6.72.180 Interior configurations and operation of adult arcade premises.

The city shall not issue an adult arcade premises or device license unless the premises conform to the requirements of this section. In addition, owners of adult arcade premises shall ensure that the premises comply with the criteria set out in this section on a continuing basis.

A.    Premises. Restrooms may not contain video reproduction equipment. There shall be separate restrooms for customers and employees.

B.    Steps/Risers. No steps or risers are allowed in any adult arcade booth or station.

C.    Seating. No adult arcade station or booth shall have more than one stool-type seat. In order to prevent obscuring the occupant of an adult arcade station or booth from view, no stool for seating within an adult arcade station or booth shall have any seat backs or sides. The seat cannot be positioned behind the doorway so that the occupant sits with his or her back to the door.

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

E.    Adult Arcade Booth or Station. All adult arcade booths or stations must be open to an adjacent public room so that the area inside is visible by direct line of sight to persons in the adjacent public room. No adult arcade booth, station or viewing area may be obscured by any curtain, door, wall, or other nontransparent enclosure.

F.    The viewing area within the adult arcade premises shall be visible from a continuous main aisle and shall not be obscured by any curtain, door, wall or other enclosure. As used in this section, “viewing area” means the area where a patron or customer would ordinarily be positioned while watching a film, video or other viewing device.

G.    The licensee shall not permit any doors to public area on the premises to be locked during business hours, in violation of the applicable provisions of the Ellensburg building code, Uniform Building and Fire Codes, and National Fire Protection Association Code.

H.    An adult arcade device manager must, at all times when the premises are open or when any member of the public is permitted to enter and remain there, maintain illumination to such a degree that the intensity is not less than one foot-candle at floor level, and evenly distributed in all parts of the premises available for use by the public.

I.    The licensee or manager shall not permit more than one person to occupy an adult arcade station or booth at any time and public notices to this effect shall at all times be conspicuously posted and maintained on the adult arcade premises. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.180]

6.72.190 Hours of operation.

It is unlawful for any adult entertainment or adult arcade premises to be conducted, operated, or otherwise open to the public between the hours of 12:00 a.m. and 10:00 a.m. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.190]

6.72.200 Persons under 18 years of age prohibited.

A.    It is unlawful for any person under the age of 18 years of age to be in or upon any adult entertainment or adult arcade premises while the same is being operated as a business for which an adult entertainment or adult arcade premises license is required.

B.    It is unlawful for any owner, operator, manager or other person in charge of a premises for which an adult entertainment or adult arcade license is required, or employee of same, to knowingly permit or allow any person under the age of 18 years to be in or upon such premises while it is being operated as an adult entertainment or adult arcade business. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.200]

6.72.210 Inspections.

A.    All books and records required to be kept pursuant to this chapter shall be open to inspection by the police chief or designee of the city of Ellensburg during hours when the licensed premises is open for business. The purpose of such inspection shall be to determine if the books and records meet the requirements of this chapter.

B.    The licensed premises shall be (as an implied condition of receiving an adult entertainment license) open to inspection by the police chief or designee during the hours when the adult entertainment premises is open for business. The purpose of such inspection shall be to determine if the licensed premises is operated in accordance with the requirements of this chapter. It is hereby expressly declared that unannounced inspections are necessary to ensure compliance with this chapter. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.210]

6.72.220 Alcoholic beverages and controlled substances prohibited.

No adult entertainment premises or adult arcade premises shall serve, sell, distribute, or allow the consumption or use of any alcoholic beverage or controlled substance upon the premises, including the premises parking areas. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.220]

6.72.230 Record keeping requirements.

A.    No later than May 1st of each year, each adult entertainment premises licensee shall file with the police chief of the city of Ellensburg a verified report showing the licensee’s gross receipts and amounts paid to entertainers for the preceding calendar year.

B.    Each adult entertainment premises licensee shall maintain, constantly update and retain for a period of at least two years after termination of employment the names, addresses, and ages of all persons employed as entertainers by the licensee. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.230]

6.72.240 Public nuisance.

Any adult entertainment business operated, conducted, or maintained contrary to the provisions of this chapter or any law of the city or state of Washington shall be, and the same is, declared to be unlawful and a public nuisance and the city attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action or actions 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 entertainment business, and restrain and enjoin any person from operating, conducting, or maintaining an adult entertainment business contrary to the provisions of this chapter. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.240]

6.72.250 Moral nuisance.

Any adult entertainment business operated, conducted, or maintained contrary to the provisions of Chapter 7.48A RCW, Moral Nuisance, shall be, and the same is declared to be, unlawful and a moral nuisance and the city attorney may, in addition to or in lieu of any other remedies set forth herein, commence an action or actions for the abatement, removal, and enjoinment therefor, or civil penalty, in the manner provided by the moral nuisance statute. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.250]

6.72.260 Violation – Penalty.

Every person, including members of the public, owners, operators, employees or agents, or independent contractors for the owner, employee or operator, or acting as a participant or worker who in any way directly or indirectly works in or operates an adult entertainment business, of any of the services defined in this chapter without first obtaining a license or permit, and paying a fee to do so, from the city, or violates any provisions of this chapter shall be guilty of a misdemeanor. Upon conviction, such person shall be punished by a fine not to exceed $1,000, or by imprisonment for a period not to exceed 90 days, or by both such fine and imprisonment. Each separate day or any portion thereof during which any violation of any provision of this chapter occurs or continues shall be deemed a separate and distinct offense. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.260]

6.72.270 Additional enforcement.

Notwithstanding the existence or use of any other remedy, the city may seek legal or equitable relief to enjoin any acts or practices which constitute or will constitute a violation of other regulations herein adopted. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.270]

6.72.280 Ordinance not intended towards particular group or class.

A.    It is the purpose of this chapter to provide for and promote the health, safety and welfare of the general public, and not to create or otherwise designate any particular class or group of persons who will or should be especially protected or benefitted by the terms of this chapter.

B.    No provision nor any term used in this chapter is intended to impose any duty whatsoever upon the city or any of its officers or employees, for whom the implementation or enforcement of this chapter is discretionary and not mandatory.

C.    Nothing contained in this chapter is intended to be nor shall it be construed to create or form the basis for any liability on the part of the city, or its officers, employees or agents, for any injury or damage resulting from the failure of any owner, operator, manager, or other person in charge of said premises to comply with the provisions of this chapter, or by reason or in consequence of any inspection, notice, order, certificate, permission or approval authorized or issued or done in connection with the implementation or enforcement pursuant to this chapter, or by reason of any action or inaction on the part of the city related in any manner to the enforcement of this chapter by its officers, employees or agents. [Ord. 4656 § 3, 2013; Ord. 4212, 1999. Formerly 13.49.280]