Chapter 4.80
ADULT ENTERTAINMENT BUSINESSES
Sections:
4.80.030 Adult entertainment license required.
4.80.050 Processing of application.
4.80.070 License fee and expiration.
4.80.080 License for managers and entertainers of adult cabarets required—Fee.
4.80.090 License nontransferable.
4.80.100 Adult cabarets-Requirements.
4.80.110 Adult arcades—Standards.
4.80.130 Record-keeping requirements.
4.80.150 Suspension or revocation of license.
4.80.170 Application to existing businesses.
4.80.180 Chapter nonexclusive.
4.80.010 Purpose and intent.
It is the purpose of this chapter to regulate adult entertainment businesses and related activities to promote the health, safety, morals and welfare of the citizens of the city, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of these businesses on the community. It is not the intent of this chapter to impose any limitation or restrictions on the content of any communicative materials nor to restrict nor deny access by adults to adult entertainment protected by the State or Federal Constitutions, or to deny access of the distributors and exhibitors of adult entertainment to the market. Nor is it the intent of this chapter to condone or legalize the distribution of obscene materials. (Ord. 1206 (part), 1997)
4.80.020 Definitions.
The following words and phrases, as used in this chapter, shall have the following meanings:
“Adult entertainment business” means any of the following:
(1) Adult arcade: An establishment to which the public is permitted or invited where, for any form of consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image-producing machines arranged or situated for viewing of the image produced thereby by five or fewer persons each, are regularly used to show films, motion pictures, video cassettes, slides or other photographic reproductions, which are characterized by the depiction of “specified sexual activities” or “specified anatomical areas.”
(2) Adult cabaret: A night club, bar, restaurant, theater, hall, studio or similar commercial establishment, whether or not alcoholic beverages are served, which regularly features persons who appear nude or live performances which are characterized by the exposure of “specified anatomical areas” or by “specified sexual activities.”
(3) Adult motion picture theater: A commercial establishment which does not fall within the definition of adult arcade above, where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions, which are characterized by the depiction of “specified anatomical areas” or “specified sexual activities,” are regularly shown.
(4) Adult motel: A hotel, motel or similar commercial establishment which regularly:
(A) Offers accommodations to the public for any form of consideration, and regularly provides patrons with closed circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions, which are characterized by the depiction or description of “specified sexual activities” or “specified anatomical areas,” and has a sign visible from a public right-of-way which advertises the availability of this adult type of photographic reproductions; or
(B) Offers a sleeping room for rent for a period of time that is less than ten hours; or
(C) 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.
“Entertainer” means a person who appears nude or who performs any exhibition or dance characterized by the exposure of “specified anatomical areas” or “specified sexual activities” at any adult entertainment business.
“Manager” means any person who manages, directs, administers, or is in charge of, the affairs and/or conduct of any adult entertainment business.
“Nude” or “state of nudity” means the appearance of less than completely and opaquely covered human buttock, anus, pubic region, male genitals, female genitals, or the female breasts below a point immediately above the top of the areolae.
“Operator” means the owner, licensee, manager, operator and/or person in charge of any adult entertainment business.
“Specified anatomical areas” means any of the following:
(1) Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, or female breasts below a point immediately above the top of the areolae; or
(2). Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
“Specified sexual activities” means any of the following:
(1) Fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breasts; or
(2) Acts of human sex, actual or simulated, including intercourse, oral copulation or sodomy; or
(3) Human masturbation, actual or simulated; or
(4) Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (3) of this definition. (Ord. 1206 (part), 1997)
4.80.030 Adult entertainment license required.
No person shall operate an adult entertainment business without a valid adult entertainment license issued by the city for the particular type of business. No entertainer, employee or operator shall knowingly perform any work or service directly related to the operation of an unlicensed adult entertainment business. (Ord. 1206 (part), 1997)
4.80.040 License—Application.
An application for an adult entertainment license shall be made on a form provided by the city. A separate license shall be obtained for each category of business defined in Section 4.80.020 and for each location. Any person desiring to operate an adult entertainment business shall file with the city clerk-treasurer the original and two copies of a completed and sworn license application together with the following information:
(1) Name, any alias or previous names, driver’s license number, federal tax identification number, and business mailing and residential address for each individual, partner, corporate officer, director and principal stock holder, and for each partnership, corporation and business;
(2) Satisfactory proof that each individual, partner, corporate officer, director and principal stock holder has attained the age of eighteen years;
(3) If a partnership, whether general or limited; and if a corporation, date and place of incorporation, evidence that it is in good standing under the laws of the state of Washington, and name and address of any registered agent for service of process;
(4) Whether the applicant or any partner, corporate officer, director or principal stock holder holds any other licenses under this chapter or any similar adult entertainment or sexually oriented business ordinance from another city or town, and, if so, the names and addresses of such other licensed business;
(5) The single classification of license requested;
(6) The location of the proposed adult entertainment business, including a legal description of the property, street address, and telephone number, together with the name and address of each owner and lessee of the property;
(7) Two two-inch by two-inch photographs of each applicant, including partners and operators, taken within six months of the date of application, showing only the full face;
(8) A complete set of fingerprints for each individual, partner and corporate operator, on forms prescribed by the police chief;
(9) A scale drawing or diagram showing the configuration of the premises for 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 offices and stations, rest rooms and service areas shall be clearly marked on the drawing. An application for a license for an adult cabaret or adult arcade shall include building plans which demonstrate conformance with the requirements of Sections 4.80. 100 or 4.80.110of this chapter, respectively;
(10) A nonrefundable application fee in the amount of one hundred dollars shall be paid at the time of filing an application in order to defray the cost of processing the application;
(11) Each applicant shall verify, under penalty of perjury, that the information contained in the application is true. (Ord. 1206 (part), 1997)
4.80.050 Processing of application.
Upon receipt of a complete application and application fee the city clerk-treasurer or designee shall provide copies of the application to the police, and other appropriate departments and staff, for their investigation and review to determine compliance of the proposed business with the laws and regulations which the department administers.
A department shall recommend denial of a license under this chapter if it finds that the proposed business is not in conformance with the requirements of any provision of any statute, code, ordinance, regulation or other law in effect in the city. A recommendation for denial shall cite the specific reason therefor, including applicable laws. (Ord. 1206 (part), 1997)
4.80.060 Issuance of license.
The city clerk-treasurer shall grant or deny an adult entertainment license within thirty days from the date the complete application and fee were received, unless the applicant has requested and been granted an extension of time by the city clerk-treasurer. If a license is not granted or denied within thirty days of proper filing, the applicant may, subject to all other applicable laws, operate the business for which the license was sought until notified by the city clerk-treasurer or designee that the license has been denied.
An adult entertainment license shall be granted by the city clerk-treasurer unless one or more of the following grounds for denial is present, in which case the license shall be denied:
(1) An applicant, including partners, corporate officers, directors and principal stock holders, is under the age of eighteen years;
(2) An applicant has failed to provide information required under this chapter for the issuance of the license or has provided false information on the application form or supporting documentation;
(3) The applicant has failed to permit entry onto the premises by city representatives for the purpose of determining whether they are in compliance with the provisions of this chapter and with health, fire, building and land use codes of the city;
(4) The city clerk-treasurer or the head of the police has determined that the proposed business does not comply with requirements of this chapter or with a specified, applicable law or regulation.
The license, 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 licensed adult entertainmentbusiness. One photograph of the applicant shall be affixed to the license. The permit shall be posted in a conspicuous place at or near the entrance of the adult entertainment business so that it can be easily read at any time the business is open. (Ord. 1206 (part), 1997)
4.80.070 License fee and expiration.
The annual fee for an adult entertainment license for an adult cabaret shall be five hundred dollars. The annual fee for an adult entertainment license for all other adult entertainment businesses shall be one hundred twenty-fivedollars. These fees shall be used to help defray the cost of administering this chapter.
Each license shall expire annually on December 31st and must be renewed by January 1st. An application for license renewal shall contain such information as is necessary to update the application information provided pursuant to Section 4.80.040.
Where a license becomes effective on a date other than January 1st, the license fee shall be prorated on a quarterly basis. The prorated fee shall include full payment for the calendar quarter in which the license becomes effective and for each calendar quarter thereafter, to the end of theyear. (Ord. 1206 (part), 1997)
4.80.080 License for managers and entertainers of adult cabarets required—Fee.
No person shall work as a manager at an adult cabaret without first obtaining a manager’s license from the city. No person shall work as an entertainer at an adult cabaret without first obtaining an entertainer’s license from the city. Each applicant for an entertainer’s or manager’s license shall complete an application on forms provided by the city containing the information identified in Section 4.80.040 (1) through (5), (7), (8) and (11). A nonrefundable fee of twenty-five dollars shall accompany the application. A copy of the application shall be provided to the police department for its review, investigation and recommendation, which shall be provided to the city clerk-treasurer within two business days of the date the complete application was filed.
A manager’s or entertainer’s license shall be granted by the city clerk-treasurer within two business days of receipt of a complete application and fee unless the applicant fails to provide the required information, makes false statements on the application or accompanying documentation or is under the age of eighteen years, in which case it shall be denied.
A manager’s or entertainer’s license expires annually on December 31st and must be renewed by January 1st. The annual fee for this license shall be one hundred dollars, which amount shall be used to help defray the cost of administration of this chapter. An application for renewal shall contain such information as is necessary to update the information required for the original license application.
Each manager’s and entertainer’s license shall be conspicuously displayed in the adult cabaret at or near the main entrance so that it may be easily read at all times the manager or entertainer is performing in the cabaret. Each license shall contain the name of the licensee, and the date of expiration. One photograph of the licensee shall be affixed to the license. (Ord. 1206 (part), 1997)
4.80.090 License nontransferable.
No license issued pursuant to this chapter shall betransferable. (Ord. 1206 (part), 1997)
4.80.100 Adult cabarets—Requirements.
The following requirements shall apply to all adult cabarets within the city:
(1) Manager on Premises.
(A) A licensed manager shall be on duty at an adult cabaret business premises at all times any person appears nude or whenever any live performance which is characterized by the exposure of specified anatomical areas or by specified sexual activities is provided. Where there is more than one performance area, where the performance area is of such size or dimension that one manager is unable to visually observe, at all times, each person appearing nude or exhibiting specified anatomical areas or specified sexual activities, a licensed manager shall be provided for each performance area or portion of a performance area visually separated from other portions of the performance area. The licensed manager(s) shall maintain visual contact with each entertainer at all times the entertainer is present in the public, performance or customer areas of the adult cabaret.
(B) The licensed manager on duty shall not be an entertainer.
(C) It shall be the responsibility of the manager to verify that any entertainer who works or appears within the premises possesses a current and valid entertainer’s license posted in the manner required by this chapter.
(D) The name of the manager on duty shall be prominently displayed during business hours.
(2) Premises-Specifications.
(A) The portion of the adult cabaret premises in which any person appears nude or where any live performance characterized by the exposure of specified anatomical areas or the depiction of specified sexual activities is conducted (adult entertainment performance area) shall be a stage or platform at least eighteen inches in elevation above the level of the patron seating areas, and shall be separated by a distance of least ten feet from all areas of the premises to which patrons have access. A continuance railing at least three feet in height and located at least ten feet from all points of the performance area shall separate the performance area and the patron areas.
(B) Sufficient lighting shall be provided and equally distributed throughout the parts of the premises which are open to and used by patrons so that all objects are plainly visible at all times and so that a program, menu or list printed in eight point type may be read by a person with normal vision.
(3) Standards of Conduct. The following standards of conduct must be adhered to by patrons, entertainers, managers and employees of adult cabarets at all times live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities or persons appearing nude are provided:
(A) No employee or entertainer shall appear nude on any part of the premises open to view of patrons or other members of the public, except on or in the entertainment performance area described in subsection (2)(A) of this section.
(B) No patron or customer shall go into or upon the adult entertainment performance area as described above while live adult entertainment including the exhibition of specified anatomical areas or specified sexual activities is being performed.
(C) No person 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 in any area of the premises open to the public or to patrons.
(D) No person shall allow, encourage or permit physical contact between an employee or entertainer and any member of the public or patron which contact is intended to arouse or excite sexual desires.
(E) No employee or entertainer shall perform acts of: sexual intercourse, masturbation, bestiality, sodomy, oral copulation, flagellation, or any sexual acts which are prohibited by law, in or in view of any area of the premises open to members of the public or patrons.
(F) No entertainer 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.
(G) No entertainer may receive or solicit payment of any gratuity directly from any patron. Patrons may give gratuities to a licensed manager for distribution to an entertainer.
(H) Signs at least two feet by two feet, with letters at least one inch high, shall be conspicuously displayed in the public area of the premises stating the following:
This adult cabaret is regulated by the City of Sumas. Entertainers are: (A) not permitted to engage in any type of sexual conduct; (B) not permitted to appear nude, except on stage; (C) not permitted to perform within 10 feet of patrons; (D) not permitted to receive tips or gratuities directly from patrons. All tips must be given to the manager for distribution to entertainers.
(4) Age Requirement for Patrons. No person under the age of eighteen years may be admitted to an adult cabaret.
The licensed manager on duty shall be responsible for taking reasonable measures to ensure that each person admitted to the premises has attained the requisite age. Reasonable measures shall include requiring persons seeking admission to provide photo identification and proof of the required age in the form of a driver’s license, passport, or other form of identification issued by a federal, state or local government which indicates the name and date of birth of the person seeking admission.
(5) Hours of Operation. No adult cabaret shall provide or allow live performances characterized by the exposure of specified anatomical areas or specified sexual activities or persons appearing nude between the hours of two a.m.and eleven a.m. (Ord. 1206 (part), 1997)
4.80.110 Adult arcades—Standards.
Adult arcades shall be required to conform to the following standards:
(1) All viewing booths, rooms, cubicles, and other areas separated in any fashion from the public or common areas of the premises and utilized for the viewing of photographic reproductions or other images characterized by the depiction of specified anatomical areas or specified sexual activities (viewing booths) shall be constructed, maintained and lighted so that the interior of the viewing booth is observable by persons in the aisles or other open areas of the premises such that, at a minimum, the lower thirty-six inches of the doorway or entry way is open and provides a view of the interior of the booth from the public or common areas of the premises.
(2) All viewing booths, as defined in subsection (1) of this section, shall be maintained in a clean and sanitary condition at all times.
(3) Signs shall be conspicuously displayed on the premises advising customers using viewing booths that: (A) masturbation in such booths is prohibited; and (B) it is unlawful for more than one customer to occupy a viewing booth at any one time.
(4) The owner and/or manager shall not knowingly allow (A) masturbation in a viewing booth; or (B) two or more customers in a viewing booth at the same time.
(5) No portion of the adult entertainment characterized by the depiction or description of specified anatomical areas or specified sexual activities shall be visible at any time in any place outside the premises.
(6) No person under the age of eighteen years maybe admitted into any adult arcade while any image-producing device is used to display within or upon the premises, any image characterized by the depiction of specified anatomical areas or specified sexual activities. The operator shall take reasonable steps to ensure that persons seeking admission to the premises have attained the requisite age, including requiring photo identification and proof of the required age in the form of a driver’s license, passport or other identification issued by a federal, state or local government containing the name and date of birth of the person seeking admission.
(7) No adult arcade shall provide or permit the exhibition of images characterized by the depiction or description of specified anatomical areas or specified sexual activities between the hours of two a.m. and eleven a.m. (Ord. 1206 (part), 1997)
4.80.120 Exceptions.
This chapter shall not be construed to prohibit:
(1) Plays, operas, musicals, other dramatic works, exhibitions or dances which are not obscene under and as defined by the Revised Code of Washington 7.48(a).010 and 9.68.140; or
(2) Classes, seminars, and lectures held for serious scientific or educational purposes. (Ord. 1206 (part), 1997)
4.80.130 Record-keeping requirements.
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 including independent contractors and their employees, as an entertainer. This record shall be open to inspection by the police chief or designee during hours of operation of the business upon twenty-four hours’ notice to the licensee. (Ord. 1206 (part), 1997)
4.80.140 Inspection.
In order to ensure compliance with this chapter all areas of licensed adult entertainment business premises which are open to the public or to customers or patrons, except adult motel sleeping rooms during the times such rooms are actually rented to customers, shall be open to inspection by the police chief or designee during the hours when the premises are open for business. (Ord. 1206 (part), 1997)
4.80.150 Suspension or revocation of license.
A license granted under this chapter may be suspended or revoked by the city clerk-treasurer, after investigating and upon recommendation of the city attorney, police chief, fire department, or the Whatcom County health officer, where one or more of the following conditions exist:
(1) The license was procured by fraud or misrepresentation of a material fact in the application or in any supporting documentation; or
(2) The business or business premises, entertainer or manager, after thirty days of written notice of noncompliance, continues to be in violation of any provision of this chapter or any other applicable law or regulation; or
(3) The licensee, operator or any employee has knowingly allowed, in or upon the premises, any violation of Section 4.80.100(C) or (D) or 4.80.110(l)), (E) or (F);
(4) The city clerk-treasurer shall provide at least ten days’ prior written notice to the licensee or the decision to suspend or revoke the license. Such notice shall inform the licensee of the right to appeal the decision to the city council as provided in this chapter, and shall state the effective date of such revocation or suspension and the grounds for revocation or suspension;
(5) A license procured by fraud or misrepresentation shall be revoked. Where the conditions listed in subsections (2) or (3) of this section are found, the license shall be suspended for a period of thirty days upon the first such violation, ninety days upon the second violation within a twenty-four-month period and revoked for a third or subsequent violations within a twenty-four-month period not including periods of suspension;
(6) A licensee whose license has been revoked may reapply for a new license one year after the effective date of the revocation. (Ord. 1206 (part), 1997)
4.80.160 Appeals.
Any applicant or licensee aggrieved by decision of the city clerk-treasurer regarding a license denial, refusal to renew, revocation or suspension may, within ten days of the date of the written notice of such action, file with the city clerk-treasurer a notice of appeal to the city council.
Such notice of appeal shall contain a concise statement of the action from which the appeal is taken, the grounds for the appeal, and the relief requested.
Within ten days of receipt of a timely appeal the city clerk-treasurer shall forward to the city council the administrative record of the licensing decision to the city council.
The city council shall within thirty days of the date the appeal was received by the city clerk-treasurer, hold a public hearing to consider the appeal. The appellant shall be provided at least seven days’ written notice of the date of the hearing. The city council’s review shall be de novo.
The action of the city clerk-treasurer shall be stayed upon filing of the appeal, pending the decision of the city council.
The city clerk-treasurer shall have the burden of proof by preponderance of the evidence in all appeals under this section. The decision of the city council shall be final. Any action to review the decision of the city council in Superior Court must be commenced within fourteen days of the date of the decision of the city council. (Ord. 1206 (part), 1997)
4.80.170 Application to existing businesses.
Any adult entertainment business legally operating upon the effective date of the ordinance codified in this chapter shall be exempt from the application of the license requirement for the remainder of 1997. Beginning January 1, 1998, all existing adult entertainment businesses shall be required to have a license as provided in this chapter. Any legally existing adult entertainment business whose premises are not in conformance with the requirements of this chapter may continue to operate as nonconforming until January 1st, 1998, at which time the premises shall be brought into conformance with this chapter. All other provisions of this chapter shall apply to existing businesses upon the effective date of the ordinance codified in this chapter. (Ord. 1206 (part), 1997)
4.80.180 Chapter nonexclusive.
The provisions of this chapter are in addition to all other regulations, statutes and ordinances. Any adult cabaret which sells, serves or provides liquor to the public shall be required to comply with the provisions of this code and all other laws applicable to liquor establishments. All adult entertainment businesses shall be required to obtain any licenses and to pay all taxes and fees required by other provisions of this code in addition to the license required in this chapter. (Ord. 1206 (part), 1997)
4.80.190 Violation-Penalty.
Any person violating any provision of this chapter shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than one thousand dollars or by imprisonment not to exceed ninety days, or by both such fine and imprisonment. Any person violating any provisions of this chapter shall be subject to license suspension or revocation as provided in this chapter. (Ord. 1206 (part), 1997)
4.80.200 Nuisance.
Any adult entertainment business operating in violation of this chapter shall be deemed a public nuisance. The city attorney may, in addition to or in lieu of any other remedies set forth in this chapter, commence an action to enjoin or abate such nuisances in the manner provided by law. (Ord. 1206 (part), 1997)
4.80.210 Severability.
If any portion of this chapter, or its application to any person or circumstance, is held invalid, the validity of the chapter as a whole, or any other portion thereof, and its application to any other persons or circumstances, shall not be affected. (Ord. 1206 (part), 1997)
4.80.220 Liability.
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 establish or designate any particular class or group of persons who will or should be especially protected or benefited by the terms of thischapter.
No provision or term in this chapter is intended to impose any duty whatsoever upon the city or any of any of its officers or employees to or for the benefit of any person or class of persons.
Nothing contained in this chapter is intended to be nor shall 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 to comply with the provisions of this chapter, or by reason 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. 1206 (part), 1997)