Chapter 4.44
ADULT ENTERTAINMENT BUSINESSES

Sections:

4.44.010    Purpose.

4.44.020    Definitions.

4.44.030    Prohibition.

4.44.040    Applicability to currently operating adult entertainment businesses.

4.44.050    Exemptions.

4.44.060    Adult entertainment business license required.

4.44.070    Application procedure.

4.44.080    Review of application and issuance of license.

4.44.090    License nontransferable.

4.44.100    Application and license fees.

4.44.110    Standards of conduct and operation.

4.44.120    Business hours.

4.44.130    On-premises manager.

4.44.140    Recordkeeping.

4.44.150    Inspections.

4.44.160    Suspension or revocation of license.

4.44.170    Appeals.

4.44.180    Compliance with other ordinances.

4.44.190    Violation a civil penalty.

4.44.010 Purpose.

This chapter is intended to protect the general public health, safety, and welfare of the citizens of the city of Omak through the regulation of the operation of adult entertainment businesses. The regulations set forth in this chapter are intended to prevent health and safety problems in and around adult entertainment businesses and to prevent dangerous and unlawful conduct in and around such businesses. (Ord. 1345 § 2(1), 1997).

4.44.020 Definitions.

For the purposes of this chapter, the following definitions shall apply:

(1)    “Adult cabaret” means a nightclub, bar restaurant, or similar commercial establishment that regularly features:

(A)    Persons who appear in a state of nudity or semi-nude; or

(B)    Live performances that are characterized by the exposure of specified anatomical areas; or

(C)    Films, motion pictures, video cassettes, slides or other photographic reproductions that are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

(2)    “Adult entertainment business” shall mean a business meeting the definition of an adult cabaret, adult hotel/motel, adult motion picture theater, adult panorama theater or arcade, adult retail establishment, or adult theater.

(3)    “Adult hotels/motels” is a hotel, motel, or similar commercial establishment:

(A)    Which offers sleeping accommodations to the public for any form of consideration and provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas; and

(B)    Which offers a sleeping room for rent for a rental fee period of time that is less than ten hours; or

(C)    Which allows a tenant or occupant of a sleeping room to sub-rent the room for a period of time that is less than ten hours.

(4)    “Adult motion picture theater” means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are regularly shown that are characterized by the depiction of specified sexual activities, or specified anatomical areas.

(5)    “Adult panorama theater or arcade” means a place to which the public is permitted or invited in which coin-operated, slug-operated, or electronically, electrically, mechanically controlled still or motion picture machines, projectors, video or laser disc players, or other image producing devices are maintained to show images to one person per machine at any one time, and where the images so displayed are distinguished or characterized by the depiction or description of specified sexual activities or specified anatomical areas.

(6)    “Adult retail establishment” means any premises in which ten percent of the “stock in trade” (as defined herein) consists of merchandise distinguished or characterized by the depiction of, description, simulation, or relation to “specified sexual activities” or “specified anatomical areas.” The term “merchandise,” as used above, includes but is not limited to the following: books, magazines, posters, cards, pictures, periodicals, or other printed matter; prerecorded video tapes, discs, film, or other such medium, instruments, devices, equipment, paraphernalia or other such products.

(7)    “Adult theater” means a theater, concert hall, auditorium, or similar commercial establishment that regularly features persons who appear in a state of nudity or seminudity.

(8)    “Clerk” means the city clerk of the city of Omak or his/her designee.

(9)    “Manager” means any person who manages, directs, administers or is in charge of, the affairs and/or the conduct of an adult entertainment business.

(10)    “Obscene” or “obscenity” means any matter:

(A)    Which the average person, applying contemporary community standards, would find, when considered as a whole, appeals to the purient interest; or

(B)    Which explicitly depicts or describes patently offensive representations or descriptions of:

(i)    Ultimate acts, normal or perverted, actual or simulated, or

(ii)    Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital areas, or

(iii)    Violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape, or torture, or

(iv)    Has a dominant theme which appeals to the purient interests of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the descriptions or representation of sexual matters or sadomasochistic abuse, and

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

(11)    “Specified anatomical areas” means and includes less than completely and opaquely covered human genitals, pubic region, anus, or areola of the female breasts or any artificial depiction of the same.

(12)    “Specified sexual activities” means and includes any of the following:

(A)    The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts; or

(B)    Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, or sodomy; or

(C)    Masturbation, actual or simulated; or

(D)    Human genitals or artificial depictions of the same in a state of sexual stimulation or arousal; or

(E)    Excretory functions as part of or in conjunction with any of the activities set forth in subdivisions (A) through (D) of this subsection. (Ord. 1345 § 2(2), 1997).

4.44.030 Prohibition.

To prevent illegal activities such as obscenity, sexual offenses, tax evasion, and prostitution, as well as a variety of secondary affects including but not limited to increase in crime, decline of property values, blighting of neighborhoods, diminution of the quality of life, and depression of business activity, a person or persons shall not use any property or premises for an adult entertainment business or use within the city unless such business or use is in compliance with all regulations and conditions enumerated in this chapter and Title 18 OMC. (Ord. 1345 § 2(3), 1997).

4.44.040 Applicability to currently operating adult entertainment businesses.

Any adult entertainment business legally operating upon the effective date of the ordinance codified in this chapter shall be exempt from the licensing requirements and procedures of Sections 4.44.060, 4.44.070 and 4.44.090 of this chapter for the remainder of 1997. (Ord. 1345 § 2(4), 1997).

4.44.050 Exemptions.

(a    This chapter shall not be construed to prohibit or otherwise regulate the following uses and activities:

(1)    Plays, operas, musicals, or other dramatic works that are not obscene;

(2)    Classes, seminars, and lectures held for serious scientific or educational purposes that are not obscene; or

(3)    Exhibitions, performances, expressions, or dances that are not obscene;

(4)    Persons appearing in a state of nudity or semi-nudity in a nude or semi-nude model studio operated by:

(A)    A proprietary school, licensed by the state of Washington; a college, or junior college supported entirely or partly by taxation,

(B)    A private college approved by a national accrediting association, which maintains and operates educational programs in which credits are transferrable to a college, junior college, or university supported entirely or partly by taxation. (Ord. 1345 § 2(5), 1997).

4.44.060 Adult entertainment business license required.

It is unlawful for any person to conduct, manage, or operate an adult entertainment business unless such person is the holder of a valid and sustaining business license from the city to do so, obtained in the manner provided in this chapter. (Ord. 1345 § 2(6), 1997).

4.44.070 Application procedure.

(a)    All applications for an adult entertainment business license shall be submitted in the name of the person or entity proposing to conduct such public amusement/ entertainment on the business premises and shall be signed by such person and notarized or certified as true under penalty of perjury. All applications shall be submitted on a form supplied by the city clerk, which shall require the following information:

(1)    The name (including aliases or previous names), home address, home telephone number, date and place of birth, driver’s license number, if any, and social security number of the applicant if the applicant is an individual.

(2)    The business name, address and telephone number of the adult entertainment business.

(3)    The names, addresses, telephone numbers, and social security numbers of all owners, leaseholders, and other persons holding a significant interest based on responsibility for management of the business, including corporate officers, specifying the interest or management responsibility of each.

(4)    Addresses of the applicant for the five-year period immediately preceding to the date of the application.

(5)    A description of the sexually oriented adult entertainment or similar business history of the applicant whether such person or entity, previously operating in this or another city, county, or state, has had a business license or adult entertainment-related license revoked or suspended, the reason therefor, and the activity or occupation subsequent to such action, suspension, or revocation.

(6)    Any and all criminal convictions or forfeitures other than parking offenses or minor traffic violations including dates of conviction, nature of the crime, name and location of court and disposition for each owner, partner, or corporation.

(7)    A description of the business, occupation, or employment of the applicant for the three-year period immediately preceding the date of the application.

(8)    Authorization for the city, its agents and employees to seek information to confirm any statement set forth in the application.

(9)    A scaled drawing or diagram showing the configuration of the premises of the proposed adult entertainment business, including a statement of the total floor space occupied by the business, and marked dimensions of the interior of the premises. Performance areas, seating areas, manager’s office and station, arcade booths, restrooms, parking areas, and service areas shall be clearly marked on the drawing.

(10)    Supplemental identification and/or information deemed necessary by the clerk to confirm matters set forth in the application.

(b)    Each applicant shall verify, under penalty of perjury that the information contained in the application is true.

(c)    If any person or entity acquires, subsequent to the issuance of an adult entertainment license, a significant interest based on responsibility for management or operation of the licensed premises or the licensed business, notice of such acquisition shall be provided, in writing, to the city clerk no later than twenty-one days following such acquisition. The required notice shall include the information required for the original adult entertainment business license application. If the change in interest in greater than fifty percent then the business will be treated as a new and separate adult entertainment business requiring the issuance of a new adult entertainment business license.

(d)    An application shall be deemed complete upon the applicant’s provision of all information requested by this section, including identification of “none” where that is the correct response. At the request of the applicant, the clerk may grant an extension of time not to exceed ten days in which the applicant may provide all information required for a complete application.

(e)    No person granted an adult entertainment business license pursuant to this chapter shall operate such a business under a name not specified on the license, nor shall any person or entity operate an adult entertainment business under any designation or at any location not specified on the license.

(f)    A nonrefundable application fee must be paid at the time of filing and application in order to defray the costs of processing the application. (Ord. 1345 § 2(7), 1997).

4.44.080 Review of application and issuance of license.

(a)    Upon receipt of a complete application and fee, the Clerk shall provide copies to the police, fire, public works, and building/planning departments for their investigation and review to determine compliance of the proposed adult entertainment business with the laws and regulations which each department administers. Each department will, within thirty days of such application, inspect the application and premises and shall make a written report to the clerk whether such application and premises comply with the laws administered by each department. No license may be issued unless each department reports that the application and premises comply with the relevant laws. In the event the premises is not yet constructed, the departments shall base their recommendations as to premises compliance on their review of the drawings submitted with the application. A department shall recommend denial of a license under this subsection if it finds that the proposed adult entertainment business is not in conformance with the requirements of this chapter or other law in effect in the city. A recommendation for denial shall cite the specific reason therefor, including applicable laws.

(b)    An adult entertainment business license shall be issued by the clerk within thirty days of the date of filing a complete license application and application fee, unless the clerk determines that the application has failed to meet any of the requirements of this chapter or provide any information required by this chapter or that the applicant has made a false, misleading, or fraudulent statement of material fact on the application for a license.

(c)    If granted, an adult entertainment business license shall state on its face the name of the person or persons to whom it is issued, the expiration date, and the address of the licensed adult entertainment business. The license shall be posted in a conspicuous place within the business so that it can be easily read at any time the business is open.

(d)    If the clerk finds that the applicant has failed to meet any of the requirements for issuance of an adult entertainment business license, the clerk shall deny the application in writing and shall cite the specific reasons for the denial, including applicable law. (Ord. 1345 § 2(8), 1997).

4.44.090 License nontransferable.

No license issued pursuant to this chapter shall be transferable to any other person, entity, or premises. (Ord. 1345 § 2(9), 1997).

4.44.100 Application and license fees.

(a)    The application fee set by resolution must accompany an application for an adult entertainment business license.

(b)    The annual license fee for adult cabarets shall be set by resolution. This amount shall be used for the cost of administration of this chapter.

(c)    The annual license fee for adult entertainment businesses other than adult cabarets shall be set by resolution.

(d)    All adult entertainment business licenses issued pursuant to this chapter expire annually on December 31st and must be renewed by January 1st.

(e)    License fees effective on a date other than January 1st, shall not be prorated, except that in the event that the original application is made subsequent to June 30th, then one-half of the annual fee may be accepted for the remainder of said year. (Ord. 1418 § 11, 1999; Ord. 1345 § 2(10), 1997).

4.44.110 Standards of conduct and operation.

(a)    The city clerk shall not license any adult cabaret, adult theater, adult motion picture, or adult panorama theater arcade which does not conform to the requirements of this section, and shall revoke or suspend the license of any such premises which do not maintain conformity with this section.

(b)    Standard of Conduct and Operation Applicable to Adult Cabarets and Adult Theaters. The following regulations shall apply to adult cabarets:

(1)    No employee or entertainer at an adult cabaret or adult theater shall perform acts of or acts which simulate specified sexual activities or other acts which are obscene or otherwise prohibited by law.

(2)    The portion of the adult cabaret or adult theater premises in which live sexually oriented adult entertainment is performed shall be a stage or platform at least twenty-four inches in elevation above the level of the patron seating areas, and shall be separated by a distance of at least six feet from all areas of the premises to which patrons have access. A continuous railing at least three feet in height and located at least six feet from all points of the performance area shall separate the performance area and the patron areas.

(3)    No employee or entertainer shall appear nude or seminude in any part of the premises open to view of members of the public, except on or in the performance area defined under subsection (b)(1) of this section.

(4)    At no time shall patrons or customers be allowed to go into or upon the performance area described in subsection (b)(1) of this section.

(5)    The required manager of an adult cabaret shall maintain visual observation of each member of the public at all times any performer is present in the public or performance areas of the business. Where there is more than one performance area, or the performance area is of such a size and configuration that one manager is unable to visually observe, at all times, each performer, each employee, and each member of the public, then a manager or assistant manager shall be provided for each public or performance area or portion of a public or performance area visually separated from other portions of the adult cabaret.

(6)    No entertainer employed or otherwise working at an adult cabaret shall solicit, demand, accept, or receive any gratuity or payment from a patron, customer, or member of the public.

(7)    When not performing, entertainers are prohibited from being present in areas of the establishment that are open to the general public, except bathrooms.

(8)    There shall be a licensed uniformed security guard on the property at all times the premises is open to the public.

(9)    Signs in both English and Spanish of sufficient size to be readable at twenty feet shall be conspicuously displayed in the public area of adult cabarets stating the following:

THIS PREMISES IS REGULATED BY THE CITY OF OMAK. ADMISSION IS RESTRICTED TO PERSONS EIGHTEEN (18) YEARS OR MORE. ENTERTAINERS ARE:

(A)    Not permitted to engage in any type of sexual conduct;

(B)    Not permitted to appear nude or semi-nude, except on stage;

(C)    Not permitted to dance or model where patrons are congregated;

(D)    Not permitted to solicit, demand, accept, or receive any gratuity or other payment from a patron.

(c)    Standard of Conduct and Operation Applicable to Adult Panorama Theaters or Arcades and Adult Motion Picture Theaters. In addition to regulations found in Section 18.50.180, the following regulations shall apply to adult panorama theaters or arcades and adult motion picture theaters:

(1)    The licensee shall permanently post and maintain on the interior or exterior of each booth or viewing area a sign with one-inch lettering in a contrasting background stating:

Occupancy of this booth is at all times limited to only one person. There may be no lewd or obscene conduct in the stations or booth or on the premises. Violators are subject to civil infractions imposed by the City of Omak.

(2)    The licensee shall not operate or maintain any warning system or device, of any nature or kind, for the purpose of warning customers or patrons or any other persons occupying panorama/arcade booths or adult motion picture theaters that police officers, or city fire, licensing, or building inspectors are approaching or have entered the licensee’s premises.

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

(4)    No person under the age of eighteen years of age may be on or within an adult panorama theater or arcade or adult motion picture theater premises whether as a patron, member, customer, agent, employee, or independent contractor.

(5)    There shall be a licensed uniformed security guard on the property at all times the premises is open to the public.

(6)    Signs in both English and Spanish of sufficient size to be readable at twenty feet shall be conspicuously displayed in the public area of the adult panorama theater or arcade stating the following:

THIS PREMISES IS REGULATED BY THE CITY OF OMAK. ADMISSION IS RESTRICTED TO PERSONS EIGHTEEN (18) YEARS OR MORE.

(Ord. 1345 § 2(11), 1997).

4.44.120 Business hours.

It is unlawful for any adult entertainment business to be operated or otherwise open to the public between the hours of two a.m. and eleven-thirty a.m. (Ord. 1345 § 2(12), 1997).

4.44.130 On-premises manager.

(a)    A manager, or other person designated by the manager and responsible for the operation of the business shall be on duty at an adult entertainment business at all times adult entertainment is being provided or is available or members of the public are present on the premises.

(b)    The manager shall not be a performer. (Ord. 1345 § 2(13), 1997).

4.44.140 Recordkeeping.

(a)    All papers, records, and other information required to be kept pursuant to this chapter shall be open to inspection by the clerk or his or her designee during the hours when the licensed premises are open for business. The purpose of such inspections shall be to determine whether the papers, records, and other information meet the requirements of this chapter.

(b)    Each adult entertainment business shall maintain and retain for a period of two years the name, address, and age of each person employed or otherwise retained or allowed to perform on the premises. This information shall be open to inspection by the city during hours of operation of the business. (Ord. 1345 § 2(14), 1997).

4.44.150 Inspections.

In order to ensure compliance with this chapter, all areas of the licensed adult entertainment business which are open to members of the public shall be open to inspection by City agents and employees during the hours when the premises are open for business. The purpose of such inspections shall be to determine if the licensed adult entertainment business is being operated in accordance with the requirements of this chapter. It is expressly declared that unannounced inspections are necessary to ensure compliance with this chapter. (Ord. 1345 § 2(15), 1997).

4.44.160 Suspension or revocation of license.

(a)    The clerk may revoke any license issued under this chapter or may suspend any such license for a period of time not to exceed one year where one or more of the following conditions exist:

(1)    The license was procured by fraud or by a false or misleading representation of fact in the application or in any report or record required to be filed with the clerk;

(2)    The building, structure, equipment, operation, or location of the business for which the license was issued does not comply with the requirements or standards of this chapter;

(3)    The license holder, his or her employee, agent, partner, director, officer, or manager has violated or permitted violation of any of the provisions of this chapter.

(b)    Upon determination that grounds for revocation or suspension of a license exist, the clerk shall send the license holder a notice of revocation or suspension via certified mail, return receipt requested. The notice shall set forth the grounds for revocation or suspension. Upon issuance of such notice, the license is no longer valid and current.

(c)    In addition to the revocation and suspension provisions described in this section, adult entertainment businesses found in violation of this chapter are also subject to the civil penalties found in Section 4.44.190. (Ord. 1345 § 2(16), 1997).

4.44.170 Appeals.

(a)    Upon notice of nonissuance, revocation or suspension of any license under this chapter, the applicant or license holder may appeal by filing a notice of appeal with the clerk within ten days of the date of the notice of nonissuance, revocation or suspension. The issuance of such notice shall only stay the effect of the notice of nonissuance, but not in the case of revocation or suspension.

(b)    At the time of the filing of a notice of appeal, the clerk shall place the applicant or licensee on the agenda of the next regularly scheduled council meeting occurring more than five days after receipt of the notice of appeal, and inform the applicant or licensee, in writing, of the date, time, and location of the meeting. At such meeting, the city council shall set a date for a public hearing on the appeal. The public hearing shall be within twenty days from the council’s receipt of the notice of appeal.

(c)    The council shall conduct the public hearing at which the applicant or licensee may present verbal and/or written testimony as to his or her compliance with the statutes or ordinance provision which he or she is allegedly not conforming with.

(d)    After the close of the public hearing, the city council shall either grant the license, or sustain the denial, revocation or suspension. The city council shall base its decision on the preponderance of the evidence and shall make findings of fact which shall be incorporated in its minutes as to the basis for its decision.

(e)    The decision of the city council shall be final unless appealed to the superior court within twenty days of the date the decision is entered. (Ord. 1345 § 2(17), 1997).

4.44.180 Compliance with other ordinances.

(a)    This chapter is separate and independent from other provisions of the Omak Municipal Code that are applicable to adult entertainment businesses or uses and does not relieve any person from the requirement to comply with such provisions.

(b)    In addition to the remedies described in Section 4.44.170 of this chapter, violation of any provisions of the Omak Municipal Code that are applicable to adult entertainment businesses shall constitute grounds for nonissuance, revocation, or suspension of an adult entertainment business license. (Ord. 1345 § 2(18), 1997).

4.44.190 Violation a civil penalty.

(a)    Failure to perform any act required, or the performance of any act prohibited, by this chapter is designated as a civil infraction and shall not be classified as a criminal offense. Any person, firm, or corporation found to have committed such a civil infraction shall be subject to the penalties as set forth in Chapter 1.16.

(b)    The clerk shall be notified by the police department upon that department’s issuance of a citation for a violation of any provision of this chapter.

(c)    In addition to the civil penalty described in this section, adult entertainment businesses found in violation of this chapter shall also be subject to the revocation and suspension provisions enumerated in Section 4.44.160. (Ord. 1665 § 1 (part), 2010; Ord. 1345 § 2(19), 1997).