HomeMy WebLinkAboutORD 1196 (1998) ORDINANCE NO. 1196
AN INTERIM ORDINANCE OF THE CITY OF TUSTIN ESTABLISHING A
COMPREHENSIVE ORDINANCE TO:' DISPERSE AND LIMIT SEXUALLY
ORIENTED BUSINESSES TO SPECIFIED ZONING DISTRICTS; LICENSE AND
REGULATE SEXUALLY ORIENTED BUSINESSES AND EMPLOYEES; PROVIDE
ADDITIONAL HEALTH AND SAFETY REGULATIONS FOR SEXUALLY
ORIENTED BUSINESSES; AND, REPEAL SECTIONS INCONSISTENT
THEREWITH.
The City Council of the City of Tustin does hereby ordain as follows:
SECTION 1 FINDINGS
The City Council finds as follows:
A. That pursuant to California Government Code Section 65858, the City Council finds and
determines that a current and immediate threat to the-public health, safety, peace, and welfare
exists which necessitates the immediate enactment of this Ordinance for the immediate
preservation of the public health, safety, peace, and welfare as follows: The City's regulations
governing sexually oriented businesses are being updated as part of the City's comprehensive
revision of its zoning code. The update will allow the City to conform its regulations to
recent court decisions, including imposing operational standards to reduce adverse secondary
effects. In the meantime, within the past month, the City has received a number of inquiries
from representatives of such busineses as to where they might locate in the City. Since such
uses usually .include First Amendment activities, the City may not impose a moratorium on
such applications as it can with otherland use applications while it completes its zoning code
revision. If this interim ordinance is not adopted, sexually oriented businesses may be
established in the City without being required to adhere to strict operational standards the City
has under consideration. In addition, because certain aspects of the City's existing regulations
may not reflect the latest case law, a court may permit a sexually oriented business to operate
in the City without compliance with existing regulations. Accordingly, this ordinance is
necessary to protect the immediate health, safety and welfare of City of Tustin's residents and
businesses from the negative secondary effects of sexually oriented businesses; and
B. That sexually oriented businesses in the City of Tustin require special supervision to protect
and preserve the health, safety and welfare of Tustin's citizens, property and business owners
and the patrons of such businesses; and
C. That the City has reviewed the following studies that substantiate the adverse, secondary
effects of. sexually oriented businesses including but not limited to: Upland, California (1992);
Santa Maria, California (1993); Garden Grove, California (1991); Phoenix, Arizona (1986);
Minneapolis, Minnesota (1980); Houston, Texas (1983); Indianapolis, Indiana (1984);
Amarillo, Texas (1977); Austin Texas (1986); Seattle, Washington (1989); Oklahoma City
(1986); Beaumont, Texas (1982); and Whittier, California (1978); and during the period of
this interim ordinance, the City will continue to conduct studies, surveys and questionnaires of
real estate appraisers, businesses owners, residential owners, and parents in Tustin; and
D. That from review of other cities' studies there is convincing documented evidence that
sexually oriented businesses, because of their very nature, have a deleterious effect on
Ordinance No. 1196 ~ ,fl"~
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existing businesses and the surrounding residential areas adjacent to sexually oriented
businesses, causing increased crime and downgrading of property values; and,
E. That it is recognized that sexually oriented businesses, due to their nature, have serious
objectionable operational characteristics, particularly when they are operating in close.
proximity to each other, thereby contributing to crime, lower property values, urban blight and
downgrading of the quality of life in adjacent areas; and
F. That sexually oriented businesses are frequently used for unlawful sexual activities including
prostitution and sexual liaison of a casual nature; and
G. That increased crime and unhealthful sexual conduct tend to accompany, concentrate around,
and be aggravated by sexually oriented businesses, including, but not limited to prostitution,
pandering, exposing minors to harmful matter, possession and distribution of obscene
materials and child pornography; and, possession and sale of controlled substances and violent
· crimes against persons and property; and
H. That sexually transmitted diseases, including AIDS, is a legitimate health concern which
demands the reasonable regulations of sexually oriented business to protect the health and
well being of the citizens; and
I. That: (a) areas within close walking distance of single and multiple family dwellings should
be free of sexually oriented business uses; (b) areas where children unaccompanied by adults
could be expected to walk, patronize, or frequent should be free of sexually oriented business
uses; (c) . sexually oriented business uses should be located in areas which are not in close
proximity to residential uses, churches, parks, or other public facilities and schools; (d) the
image of the City of Tustin as a pleasant, attractive place to reside and shop will be adversely
affected by the presence of sexually oriented business uses in close proximity to residential
land uses, churches, parks and other public facilities, and schools; (e) sexually oriented
business land uses should be regulated by zoning to separate those uses from other non-
compatible uses as any other land uses are separated from uses with non-compatible
characteristics; and, (f) no evidence has been presented to show that location of sexually
oriented businesses within the City will improve the commercial viability or quality of life of
the community; and
J. That zoning, licensing and other police power regulations are legitimate reasonable means of
accountability to ensure that operators of sexually oriented businesses comply with reasonable
regulations and are located in places which minimize the adverse secondary effects which
accompany these operations; and
K.. That it is desirable to minimize and control the adverse secondary effects described in the
studies and delineated in findings D-I herein, and thereby protect the health, safety and welfare
of the citizens; protect citizens from increased crime; preserve the quality of life; preserve
property values and the character of surrounding neighborhoods and businesses; deter the
spread of urban blight and protect against the threat to health from the spread of
communicable and sexually transmitted diseases; and,
L. That United States Supreme. Court decisions regarding local regulation of sexually oriented
businesses, including but not limited to, Young v. American Mini-Theaters, Inc., 427 U.S. 50
(1976) .reh. denied 429 U.S. 873; Penton v. Playtime Theaters, 475 U.S. 41 (1986) reh.
denied 475 U.S. 1132; FW/PBS, Inc. v Dallas, 493 U.S. 215 (1990); and Barnes v Glen
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Theater, 501 U.S. 560 (1991); and City of National City v. Wiener, et at, 3 Cal. 4th 832
(1993). Topanga PresS, Inc., et al v. City of Los Angeles, 939 F. 2d 1524 (1993) have been
considered in the adoption of this ordinance; and
M. That the foregoing studies substantiate that locational criteria alone will not adequately
protect the public health, safety and general welfare and thus certain licensing requirements
with respect to the ownership and operation of sexually oriented businesses is in the public
interest; and
N. That consistent with regulations regarding the sale and consumption of alcohol and outside
advertising of such, restricted hours of operation will further prevent the adverse secondary
effects of sexually oriented business; and
O. That this ordinance is not intended to suppress any speech activities protected by the First
' Amendment, but is intended to enact a content neutral ordinance which addresses the adverse
secondary effects of sexually oriented businesses; and
P. That the City Council does not condone or legitimize the distribution of obscene material and
recognizes that state law prohibits the distribution of obscene materials; and,
Q. 'That the live entertainment presented by some sexually oriented business establishments
involves a considerable amount of bodily contact between patrons and performers, including
physical contact while giving and receiving gratuities, including hugging, kissing and sexual
fondling of performers and patrons and that such activity of[en facilitates unhealthful sexual
conduct and prostitution; and
R. That a number of courts have upheld distance limitations between performers and patrons,
prohibitions against physical contact between performers and patrons and direct payment and
receipt of gratuities between performers and patrons at sexually oriented business
establishments that provide live entertainment: BSA, Inc. v. King County, 804 F.2d 1104,
1110-11 (9t~ Cir. 1986) (six feet); Kev, Inc. v Kitsap County, 793 F.2d 1091 (9t~ Cir. 1986)
(ten feet). Staff has also reviewed a Letter by the City of Newport Beach, California
regarding 'The Mermaid Application," dated April 12, 1996, containing a notice of revocation
and refusal to renew a sexually oriented business permit based on repeated violations of the
Newport Beach Municipal Code. The violations include distance limitations and direct
payment and receipt of gratuities between performers and patrons during physical contact
including sexual contact, and, an Orange County Superior Court upheld such actions by the
City of Newport Beach; and
S. That preventing prostitution and the spread of sexually transmitted diseases are within the
City's police powers. Prohibiting physical contact between performers and patrons at sexually
oriented business establishments, prohibiting performers from soliciting payment of gratuities
from patrons, and the direct payment of gratuities to performers by patrons are reasonable and
effective means of addressing these legitimate governmental interests.
T. That it is not the Council's intent to place any impermissible burden on any constitutionally
protected expression or expressive conduct by the enactment or enforcement of such
regulations.
U. That this ordinance either provides for the amendment of existing regulations applicable to
Sexually Oriented Businesses or, for the first time, provides for zoning regulations which are
specifically applicable to Sexually Oriented Business uses. Such uses are allowed under the
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City's existing zoning regulations. Therefore, it can be seen with certainty that there is no
possibility that this ordinance may have a significant adverse effect on the environment, and
therefore the adoption of this ordinance is exempt from CEQA pursuant to Section 15061 (b)
(3) of the CEQA guidelines; and
V. That this ordinance furthers the goals and policies established in the Tustin Area General Plan
including but not limited to Land Use Element Goals I, 3 & 6.
NOW THEREFORE, the City Council of the City of Tustin does ordain as follows:
SECTION 2. PURPOSE.
The purpose of this Ordinance is to establish reasonable time, place and manner regulations for
sexually oriented businesses within the legal framework of the First Amendment to protect the
'health, safety and general welfare of the citizens of the City of Tustin by establishing reasonable,
uniform and content neutral regulations to prevent the deleterious location and concentration of
sexually oriented businesses within the City, to prevent the unsafe and unhealthful operations of
such businesses thereby reducing or eliminating the adverse secondary effects from such sexually
oriented businesses. The provisions of this ordinance have neither the purpose nor effect of
imposing a limitation or restriction on the content of any communicative materials or activities,
including sexually oriented materials or activities.
SECTION 3. DEFINITIONS.
For the purposes of this ordinance, certain terms and words are defined as follows:
A. "Sexually oriented businesses" are those businesses defined as follows:
1. '~dult arcade" means an establishment where, for any form of consideration, one or
more still or motion picture projectors, slide projectors, or similar machines, or other
image producing machines for viewing 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 or description of specified
sexual activities or specified anatomical areas.
2. 'tdult Bookstore," '~dult Novelty Store," or '~dult Video Store" means a
commercial establishment which has as a significant or substantial portion of its stock-
in-trade or derives a significant or substantial portion of its revenues or devotes a
significant or substantial portion of its interior business or advertising to the sale,
rental for any form of consideration, of any one or more of the following:
a. Books, magazines, periodicals or other printed matter, or photographs, films,
motion pictures, video cassettes, slides or other visual representations which are
characterized by the depiction or description of '~pecific sexual activities" or
"specified anatomical areas";
Ordinance No. 1196 ?""' /""~
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b. Instruments, devices, or paraphernalia which are designed for use Or 'marketed
primarily for stimulation of human genital organs or for sadomasochistic use or
abuse of themselves or others,
c. An establishment may have other principal business purposes tha~ do not involve
the offering for sale rental or viewing of materials depicting or describing
'~pecified sexual activities" or '~pecified anatomical areas'; and still be
categorized as an adult 'bookstore, adult novelty store, or adult video store. Such
other business purposes will not serve to exempt such establishments from being
categorized as an adult bookstore, adult novelty store or adult video store so long
as one of the principal business purposes is offering for sale or rental, for some
form of consideration, the specified materials which depict or describe '~pecified
anatomical areas" or "specified sexual activities."
3. '`Adult cabaret" means a nightclub, bar, restaurant 'bottle club'; juice bar or similar
commercial establishment, whether or not alcoholic beverages are served, which
regularly features: (a) persons who appear nude or in a state of nudity or semi-nude;
(b) live performances which are characterized by the exposure.of'~peci~ed anatomical
areas" or by '~pecified sexual activities'; or 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".
4. '`Adult motel" means a motel, hotel or similar commercial establishment which: (a)
offers public accommodations, for any form of consideration, which provides patrons
with closed-circuit television transmission of films, motion pictures, video cassettes,
slides or other photographic reproductions which are characterized by the depiction or
description of '~pecified sexual activities" or '~peci~ed anatomical areas" and which
advertises the availability of this sexually oriented type of material by means of a sign
visible from the 'public right-of way, or by means of any off-premises advertising
including but not limited to, newspapers, magazines, pamphlets or leaflets, radio or
television; or, (b) offers a sleeping room for rent for a period of time less than ten (10)
hours; or, (c) allows a tenant or occupant to sub-rent the sleeping room for a time
period of less than ten (10) hours.
5. '`Adult motion picture theater" means a commercial establishment where films, motion
pictures, video cassettes, slides or similar photographic reproductions which are
characterized by the depiction or description of specified sexual activities or specified
anatomical areas are regularly shown for any form of consideration.
6. '`Adult Stripper or Dancer!' means a person who, for consideration, agrees or offers to
act as a companion, guide or date for another person, or persons and who strips or
dances in the nude or semi-nude for such person(s).
7. "Adult tanning salon or parlor" shall mean a business establishment where: patrons
receive tanning services in groups of two (2) or more and where patrons or employees
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of the establishment expose specified anatomical areas; or, a patron and an employee
of the establishment are nude or expose specified anatomical areas; or, the employees
thereof are nude or expose specified anatomical areas.
8. '~dult theater" means a theater, concern hall, auditorium, or similar commercial
establishment which, for any form of consideration, regularly features persons who
appear in a state of nudity or live performances which are characterized by exposure of
specific anatomical areas or by specified sexual activities.
9. 'Nude Model Studio" means any place where a person, who regularly appears in a
state of nudity, semi-nudity or displays specified anatomical areas in exchange for
money or any form of consideration and is observed, sketched, drawn, painted,
sculptured or photographed by patronS. This includes a business establishment where
lingerie which displays specified anatomical areas is modeled.' Except, a nude model
studio does not include a modeling class as described in Section 4. B. (5).
10. 'Sex supermarket/Sex mini-mall" means the establishment or operation of more than
one type of sexually oriented business or use as defined in this ordinance within the
same building.
11. 'Sexual encounter establishment" means a business or commercial establishment, that
as one of its primary business purposes, offers for any form of consideration, a place
where two or more persons may congregate, associate, or consort for the purpose Of
specified sexual activities or the exposure of specified anatomical areas or activities
when one or more of the persons is in a state of nudity or semi-nude. The definition of
sexually oriented businesses shall not include an establishment where a medical
practitioner, psychologist, psychiatrist, or similar professional person licensed by the
state engages in medically approved and recognized sexual therapy.
B. 'Employee" means a person who works for or performs in and/or for a sexually oriented
business, regardless of whether or not said person is paid a salary, wage or other
compensation by the operator of said business.
C. "Establishment" or "Establish" means and includes any of the following:
1. The opening or commencement of any such business as a new business;
2. The conversion of an existing business, whether or not a sexually oriented business, to
any of the sexually oriented businesses defined in this chapter;
3. The addition of any of the sexually oriented businesses defined in this chapter to any
other existing sexually oriented business; or
4. The relocation of any such sexually oriented business.
D. 'Operator" means and includes the owner, permit holder, custodian, manager, operator or
person in charge of any permitted or licensed premises.
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E. 'Permitted or Licensed Premises" means any premises that requires a license and/or permit
and that is classified as a sexually oriented business.
F. 'Permittee and or Licensee" means a person in whose name a permit and/or license to
operate a sexually oriented business has been issued, and individuals listed as applicants on
the application for a permit and/or license.
G. 'Person" means an individual, proprietorship, partnership, corporation, association or
other legal entity.
H. 'Public building"means any building owned, leased or held by the United States, the state,
the county, the city, any special district, School District, or any other agency or political
subdivision of the state or the United States, which building is used for governmental
purposes.
I. 'Public park" or 't'ecreation area" means land which has been designated for park or
recreational activities including but not limited to a park, playground, nature trail,
swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian/bicycle.path
or trail, open space, wilderness area, or similar public land within the city which is under
the control, operation, or management of the city park and recreation authorities.
J. 'Religious institution" means any church, synagogue, mosque, temple or building which is
used primarily for religious worship and related religious activities.
K. 'Residential district or use" means property zoned for residential uses or occupied with
attached and detached single family residences, duplexes, townhouses, multiple family
residences, mobile parks, patio homes, apartments, condominiums, stock cooperative
projects, and planned developments.
L. 'School" means any public or private educational facility including but not limited to child
day care facilities, nursery schools, preschools, kindergartens, elementary schools, primary
schools, intermediate schools, junior high schools, middle schools, high schools,
vocational schools, secondary schools, continuation schools, special education schools,
junior colleges, and universities. School includes the school grounds, but does not include
the facilities used primarily for another purpose and only incidental to a school.
M. 'Semi-nude" means a state of dress in which clothing covers no more than the genitals,
pubic region and areola of the female breast, as well as portions of the body covered by
supporting straps or devices.
N. 'Sexually oriented business" means an adult arcade, adult bookstore, adult novelty shop,
adult video store, adult cabaret, adult motel, adult .motion picture theater, adult tanning
salon, adult theater, adult stripper or dancer, sexual encounter establishment, sex
supermarket/sex mini-mall or nude model studio.
O. "Specified anatomical areas" means and includes any of the following:
Ordinance No. 1196
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1. Less than completely and opaquely covered human genitals, pubic regions, buttocks,
anuses, or female breasts below a point immediately above the top of the areolas; or
2. Human male genital's in a discernibly turgid state, even if completely and opaquely
covered.
P. Specified criminal act" means: (1) a misdemeanor or felony offense involving sexual
misconduct, including, but not limited to, all offenses listed in Penal Code Section 290,
Penal Code Sections 311.2 through 311.7, Penal Code Sections 314 through 318, and
subsections (a), (b), (c), (d), or (h) of Penal Code Section 647, Penal Code Section 674 or
any offenses involving pimping, pandering, prostitution, lewd conduct; sex crimes against
children, rape, distributing harmful matter to minors, and distributing obsenity; or (2) a
felony offense involving the possession or sale of a controlled substance specified in
Sections 11054, 11055, 11057, or 11058 of the Health and Safety Code.
Q. 'Specified sexual activities", as used in this ordinance, means and includes any of the
following:
1. The fondling or other intentional touching of human genitals, pubic regions, buttocks,
anuses, or female breasts;
2. Sex acts, normal or perverted, actual or simulated, including intercourse, oral
copulation, or sodomy;
3.Masturbation, actual or simulated;
4.Human genitals in a state of sexual stimulation, arousal or tumescence;
5. Excretory functions as part of or in connection with any of the activities set forth in
subdivisions (1) through (4) of this subsection;
6. The actual or simulated infliction of pain by one human upon another, or by an
individual upon himself/herself, for the purpose of the sexual gratification of release of
either individual, as a result of flagellation, beating, striking, or touching of an
erogenous zone, including without limitation, the thigh region, genitals, buttocks,
pubic region, or, if such person is a female, a breast.
R. 'Substantial Enlargement of a Sexually Oriented Business" means increase in the floor
areas occupied by the business by more than 15 percent as the floor area exists on
February 17, 1998.
S. 'Transfer of Ownership or Control of a Sexually Oriented Business. means and includes
any of the following:
1. The sale, lease or sublease of the business;
2. The transfer of securities which constitute a controlling interest in the business,
whether by sale, exchange or similar means;
3. The establishment of a trust, gift or other similar legal device which transfers
ownership or control of the business, except for transfer by bequest o.r other operation
of law upon the death of a person possessing the ownership or control.
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SECTION 4. PERMITTED LOCATIONS OF SEXUALLY ORIENTED BUSINESSES.
A. The establishment of a sexually .oriented business shall be permitted only in the specified
PCMU, PC-C, PCC, M, and PC-IND zoning districts; and shall be subject to the following
restrictions. No person shall cause or permit the establishment of a sexually oriented
business, as defined in this ordinance, within 500 feet of any religious institution, school,
boys' club, girls' club or similar existing youth organization, or public park or public
building or within 500 feet of any residential district or use, or within 500 feet of an
existing sexually oriented business.
B. Permits for sexually oriented businesses are required and are governed by the procedures
and policies specified in Section 8 of this ordinance. In addition, any sexually oriented
business shall be subject to the following prohibitions:
(1) A person is guilty of a misdemeanor, if he/she operates or causes to be operated a
sexually oriented business except as provided in this ordinance.
(2) A person is guilty of a misdemeanor if he or she establishes or causes to be
operated a sexually oriented business except as provided in this ordinance within
500 feet of:
a. any religious institution
b. any school
c. any residential district or use
· d.a public park
e. a public building
f. a boy's club, girls' club, or similar existing youth Organization
(3) A person is guilty of a misdemeanor if he/she establishes or causes to be operated a
sexually oriented business within 500 feet of another sexually oriented business,
except as provided in this ordinance.
(4) A person is guilty of a misdemeanor if he/she causes or permits the operation,
establishment or maintenance of more than one sexually oriented business within
the same building, structure or portion thereof, or causes the substantial
enlargement of any sexually oriented business in any building, structure or portion
thereof containing another sexually Oriented business.
(5) It is a defense to prosecution under (1), (2), (3), or (4) above ifa person appears in
a state of nudity or displays specified anatomical areas in a modeling class
operated:.
a. by a proprietary school, licensed by the State of California; a college, junior
college or university supported entirely or partly by taxation;
Ordinance No. 1196 ~
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b. by a private college or university which maintains and operates educational
programs in which credits are transferable to a college, junior college, or
university supported entirely or partly by taxation; or
c. in a structure:
(1) which has no sign visible from the exterior of the structure and no
other advertising that indicates a nude person is available for
viewing; and
(2) where to participate in a class a student must enroll at least three
· (3) days in advance of the class; and
(3) where no more than one nude model is on the premises at any one
time.
SECTION 5. MEASUREMENT OF DISTANCE.
A. The distance between any two sexually oriented businesses shall be measured in a straight
line, without regard to intervening structures from the closest exterior structural walls of
each business.
B. The distance between any sexually oriented business and any religious institution, school,
boys' club, girls' club, or similar existing youth organization, or public park or public
building or any residential district or use shall be measured in a straight line, without
regard to intervening structures or objects from the nearest portion of the building or
structure used as part of the premises where the sexually oriented business is Conducted,
to the nearest property line of the premises of any residential district or use, a religious
institution, school, boys' club, girls' club or similar existing youth organization, public
park or public building such uses are hereinafter referred to as "sensitive uses or use".
C. The distance shall be calculated at the time of the application of the sexually oriented
business for a permit under this ordinance. For the limited purpose of determining
allowable distance for a proposed application under this ordinance an 'bxisting" sexually
oriented business is one that has a valid permit or one whose application has preceeded the
application in question and is seeking approval. The subsequent establishment or permit
application of a sensitive use or sexually oriented business to locate within 500 feet of the
proposed sexually oriented business shall not be considered.
SECTION 6. REGULATIONS GOVERNING EXISTING SEXUALLY ORIENTED
BUSINESSES.
A. Any sexually oriented businesses lawfully operating on February 17, 1998, that are in violation
of Sections 4 and/or 5 of this ordinance, shall be deemed non-conforming uses. A non-
conforming use will be permitted to continue for a period of one year, with a possible
extension of one year to be granted by the Planning Commission. Said extension may only be
granted if the Planning Commission finds an extreme financial hardship exists which is defined
as the recovery of the initial financial investment in the non-conforming use, unless sooner
terminated for any reason or voluntarily discontinued for a period of thirty (30) days or more.
Such non-conforming uses shall not be increased, enlarged extended or altered except that the
use may be changed to a conforming use. If two (2) or more sexually oriented businesses are
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Ordinance No. 1196
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within 500 feet of one another and otherwise in a permissible location, the sexually oriented
business which was first established and continually operating at the particular location is the
conforming use and the later established business(es) is non-conforming.
B. A sexually oriented business lawfully operating as a conforming use is not rendered a non-
conforming use by the location subsequent to the grant or renewal of a sexually oriented -
business permit and/or license, of a church, public or private elementary or secondary school,
public park, public building, residential district, or residential lot within 500 feet of the
sexually oriented business. This provision applies only to the renewal of a valid permit and/or
license and does not apply when an application for a permit and/or license is submitted after a
permit and/or license has expired or has been revoked.
C. Any sexually oriented business subject to the provisions of this section shall apply for the
permit provided for by Section 8 within thirty (3¢0) days of the effective date of this ordinance
and shall comply with all applicable regulations contained within thirty (30) days of the
effective date of this ordinance.
SECTION 7. CIVIL INJUNCTION/MISDEMEANOR.
A person who operates or causes to be operated, a sexually oriented business in violation of this
ordinance is subject to a civil suit for injunction and criminal prosecution. A misdemeanor is
punishable by a fine of $1,000.00 and/or thirty (30) days imprisonment. If an injunction must be
sought, attorneys fees and costs will be assessed at the discretion of the Court against the sexually
oriented business.
SECTION 8. PERMIT REQUIRED.
A. Except as provided in Section 6, no person shall establish a sexually'oriented business without
a valid sexually oriented business permit issued by the City.
B. The Community Development Director or designee shall be responsible for granting, denying,
revoking, renewing, suspending, or canceling sexually oriented business permits for proposed
or existing sexually oriented businesses. The Community Development Director or designee
shall determine if a proposed sexually oriented business for which a permit is being sought
complies with all locational requirements of this Ordinance, all other applicable zoning laws
and/or regulations now in effect or as amended or enacted subsequent to the effective date of
this Ordinance.
C. The Tustin Police Department shall be responsible for providing information on whether an
applicant has been convicted of a specified criminal act during the time period set forth in
Section 10.
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D. The City's Code Enforcement and/or Police Department staff shall be responsible for
inspecting a proposed, permitted or non-permitted sexually oriented business to ascertain if
said business is in compliance with applicable statutes and ordinances. '
E. An application for a permit must be made on a City provided form. Any person desiring to
operate a sexually oriented business shall file with the City an original and two (2) copies of a
permit application signed under penalty of perjury. The required signatures shall be notarized.
F. The completed application shall contain the following information and shall be accompanied
by the following documents:
1. The applicant(s)' name and permanent address and the person(s) residing with the
applicant. If the applicant is:
a. an individual, the individual shall state his/her legal name and any aliases and submit
satisfactory proof that he/she is eighteen years of age;
b. a partnership, the partnership shall state its complete name, and the names of all
partners, whether the partnership is general or limited and a copy of the partnership
agreement, if any;
c. a corporation, the corporation shall state its complete name, the date of incorporation,
evidence that the corporation is in good standing under the laws of the State of
California, the names and capacity of all officers, directors and principal stockholders,
and the name of the registered corporate agent and the address of the registered office
for service of process.
2. If the applicant intends to operate the sexually oriented business under a name other than
that of the applicant, the application shall include:
a. the sexually oriented business's fictitious name; and
b. the required City of Tustin business license application documents.
3. If the applicant or any of the other individuals required to be listed pursuant to this section
has, within the two (2) or five (5) year period as specified in Section 10 immediately
preceding the date of the application, been convicted of a specified criminal act, and if so,
'the specified criminal act involved, the date of conviction and the place of conviction. As
used in this ordinance, a conviction includes a plea of nolo contendre.
4. If the applicant or any of the other individuals required to be listed in an application
pursuant to this section has had a permit under this Ordinance or other similar sexually
oriented business ordinance from another city or county denied, suspended or revoked,
including the name and location of the sexually oriented business for which the permit was
denied, suspended or revoked, the date of the denial, suspension or revocation and if the
applicant or any other individuals listed in the application pursuant to this Section has been
a partner in a partnership or an officer, director or principal stockholder of a corporation
whose sexually oriented business permit has previously been denied, suspended or
revoked, including the name and location of the sexually oriented business for which the
permit was denied, suspended or revoked and the date of denial, suspension or revocation.
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Ordinance No. 1196
Page 13
5. If the applicant or any other individual required to be listed pursuant to this Section holds.
any other permits and/or licenses under this Ordinance or other similar sexually oriented
business ordinance from another city or county and, if so, the names and locations of such
other permitted businesses.
6. A detailed description of the proposed entertainment, services, and/or use.
7. The location of the proposed sexually oriented business, including a legal description of
the property, street address, and telephone number(s).
8. The applicant(s) recent photograph(s).
9. The applicant(s)' driver's license numbers, social security numbers and or state or
federally issued tax identification numbers.
10. A detailed site plan showing the configuration of the premises and buildings, including the
total floor space proposed to be occupied by the business. The site plan shall be drawn to
scale at a minimum of 1 inch = 20 feet.
11. A current certificate and straight-line drawing prepared within thirty (30) days prior to
application by a California registered .land surveyor or engineer depicting the property
lines and the structures containing any existing valid sensitive use or sexually oriented
business within 500 feet of the property proposed to be occupied by a sexually oriented
business to be certified. See Section 5 for measurement of distances.
12. If a person who wishes to operate a sexually oriented business is an individual, he/she
must sign the application for a permit as applicant. If a person who wishes to operate a
sexually oriented business is other than an individual, each individual who has a ten
percent (10%) or greater ownership interest in the business must sign the application for a
permit as an applicant. If a corporation is listed as owner of a sexually oriented business
or as the entity which wishes to operate such a business, each individual having a ten
percent (10%) or greater interest in the corporation must sign the application for a permit
as an applicant. The legal' owner(s) or the real property shall also sign and indicate
consent to the application. Said application and signatures shall be notarized and signed
under penalty of perjury.
13. If a person wishes to operate a sexually oriented business which exhibits on the premises
films, video cassettes, or other video reproductions which depict specified sexual activities
or specified anatomical areas, then said person shall comply with the application
requirements stated in Section. 19.
G. Applicants for a permit under this Section shall have a continuing duty to supplement
application information required by this Section if said information changes in any way
from what is stated on the application. The failure to comply with said continuing duty
within thirty (30) days from the date of such change, by supplementing the application on
13
Ordinance No. I 196
Page 14
file with the Community Development Director or his/her designee shall be grounds for
suspension of a permit.
H. If the Community Development Director or designee determines that the applicant has
imprope~y completed the application for a proposed sexually oriented business or finds
that a submitted application is incomplete, the applicant shall be notified and shall have ten
(10) days to complete the application. (The time period for granting or denying a permit
shall be stayed during the period in which the applicant is allowed an opportunity to
complete the application.)
I. The applicant must be qualified according to the provisions of this Ordinance and the
premises must be inspected and found to be in compliance with zoning, health, fire and
building codes and other applicable laws,
J. The applicant shall be required to pay a non-refundable application fee at the time of filing
an application under this Section of this Ordinance.
K. Prior to investigating an application for a permit to operate a sexually oriented business,
and as part of any application for a permit under this Section, the applicant shall obtain
City certification that the proposed location of such business complies with the locational
and distancing requirements of this Ordinance.
L. The fact that a person possesses other types of state or city permits and/or licenses does
not exempt him/her from the requirement of obtaining a sexually oriented business permit.
M. By .applying for a permit under this Ordinance, the applicant shall be deemed to have
consented to the provisions of this Ordinance and to the exercise by the Community
Development Director or designee, the Tustin Police Department and all other agencies
charged with enforcing the laws, ordinances and codes applicable in the City,
N. The applicant shall be required to provide the City with the names of any and all
employees who are required to be licensed pursuant to Section 18. This shall be a
continuing requirement even after a permit is granted or renewed.
SECTION 9. INVESTIGATION OF PERMIT APPLICATION.
A. Upon receipt of a complete application for a sexually oriented business permit and payment of
the non-refundable application fee, the City shall stamp the application as received and shall
thereafter transmit the application to the Tustin Police Department and any other agencies
responsible for enforcement of zoning, health, fire and building codes and laws. Each
department or agency shall conduct an investigation of the applicant, application and the
proposed sexually oriented business in accordance with its responsibilities under law and as
set forth in this Ordinance. Said investigationshall be completed within thirty (30) days of
receipt of the application. At the conclusion of its investigation, each responsible department
or agency shall recommend approval, conditional approval, or disapproval of the application.
14
Ordinance No. 1196 '~
Page 15
If a department or agency recommends disapproval or conditional approval, the reasons
therefore shall be stated.
B. A department or agency shall recommend disapproval of an application if it finds that the
proposed sexually oriented business will be in violation of any provision of any statute, code,
ordinance, regulation or other law in effect in the City, including this ordinance.
SECTION 10. ISSUANCE OF PERMIT/CONDITIONAL GRANT.
A. The Community Development Director or designee, shall grant upon condition or deny an
application for a permit within thirty. (30) days from the date the application is deemed
complete. The applicant shall be notified by the Community Development Director or
designee, of such grant, conditional grant or denial of the application and shall state the
reasons(s) for that denial. A permit may be conditionally granted when the City has not timely .
received fingerprint information to verify that the applicant has not been convicted of specified
criminal acts with the time frames described in Section J. Such conditional grant shall not
constitute a vested right to operate under the permit, and the permit may be denied if
disqualifying information, as specified in Section 10l is received by the City. '
B. Grant of Application for Permit
1. The CommUnity Development Director or designee, shall grant the permit .unless one or
more of the criteria set forth in Section C below is present, except that a conditional grant
issued shall .be null and void upon the City's receipt of disqualifying information and
subsequent denial.
2. The permit, if granted, shall state the name of the person(s) to whom the permit is granted,
the expiration date, and the address of the sexually oriented business. The permit shall
also indicate if the sexually oriented business is subject to prohibitions against Public
Nudity and Indecency pursuant to the United States Supreme Court decision in Barnes v.
Glen Theater, Inc., 501 U.S. 501 (1991): The permit shall be posted by the permittee in a
conspicuous place at or near the entrance to the sexually oriented business.
C. Denial of Application for Permit
1. The Community Development Director or designee, shall deny the application for any of
the following reasons:
a. An applicant is under eighteen years of age.
b. An applicant or a person residing with the applicant who has been denied a permit to
operate a sexually oriented business within the City within the preceding twelve (12)
months, or residing with a person whose permit to operate a sexually oriented business
within the City has been revoked within the preceding twelve (12) months.
c. An applicant has failed to provide required information in the application or has
provided false or misleading information in the application.
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Ordinance No. 1196
Page 16
d. The premises to be used for the sexually oriented business have not been approved as
being in compliance with zoning, health, fire and building codes by the department or
agency responsible under law for investigating said compliance. If a. variance from
such codes is permitted by the Tustin City Code, the applicant shall be permitted to
apply for a variance and if the variance is granted, the applicant may reapply for the
sexually oriented business permit. If the variance request is approved, the application
fee shall be waived or reduced by the Community Development Director or designee,
if no further or minimal investigation is required, All application information shall be
updated by the applicant.
e. The application or permit fees required by this Ordinance have not been paid.
f, An applicant of the proposed business is in violation of, or is not in compliance with,
any of the provisions of this' Ordinance including but not limited' to the zoning
locational requirements for a sexually oriented business under Sections 3, 5 and 6.
g. The granting of the application would violate a statute, ordinance or court order.'
h. The applicant has a permit under this Ordinance which has been suspended or revoked,
i., An applicant has been convicted of a "specified criminal" act for which:
(1) less than two (2) years have elapsed since the date of conviction, or the date of
release from confinement, whichever is the later date, if the conviction is a
misdemeanor offense to a "specified criminal act".
(2) less than five (5) years have elapsed since the date of conviction or the date of
release from confinement, whichever is the later date, if the conviction is of a
felony offense for a "specified criminal act."
(3) less than five (5) years have elapsed since the date of conviction(s) or the date of
release from confinement, whichever is the later date, if the convictions are of
two or more misdemeanor offenses for "specified criminal acts".
(4) the fact that a conviction is being appealed shall have no effect on
disqualification of the applicant;
(5) an applicant who has be convicted of the above described '~pecified criminal
acts" within the time periods above may qualify and apply for a sexually oriented
business permit when the time period(s) has elapsed.
k. An applicant knowingly has in his or her employ, an employee who does not have a
valid license as required in Section 18.
2. If the Community Development Director or designee, denies the application, the Director
shall notify the applicant of the denial and state the reason(s) for the denial.
3. If a person applies for a permit for a particular location within a period of twelve (12)
months from the date of denial of a previous application for a permit at the location, and
there has not been an intervening change in the circumstances which could reasonably be
expected to lead to a different decision regarding the former reasons for denial, the
application shall be denied.
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Ordinance No. 1196
Page 17
SECTION 11. ANNUAL APPLICATION/PERMIT FEE
The annual application/permit fee for a sexually oriented business permit is one thousand dollars
($1,000.00), respectively. If the City costs are less than $1,000.00 to review, investigate, or
conduct an annual inspection, respectively, for a sexually oriented business, the applicant shall be
refunded the balance. If the-review, investigation, and annual inspections, respectively, exceeds
$1,000.00, the applicant shall pay the increase prior to the issuance of a permit to operate.
SECTION 12. INSPECTION.
A. An applicant or permittee shall permit representatives of the Community Development
Department, Code Enforcement Division, the County Health Department, and the Fire
Authority to inspect the premises of a sexually oriented business for the purpose of insuring
compliance with the law at any time it is occupied or open for business.
B. It shall be unlawful and a person or his/her agent or employee commits a misdemeanor if
he/she operates a sexually oriented business, regardless of whether or not a permit has been
issued for said business under this Ordinance, if he/she refuses to permit such lawful
inspection of the premises at any time the business is occupied or open for business,
SECTION 13. EXPIRATION OF PERMIT.
A. Each permit shall expire one (1) year from the date of issuance and may be renewed only by
making application as provided in Section 10 (for renewals, filing of original survey shall be
sufficient) of this Ordinance. Application for renewal shall be made at least thirty (30) days
before the expiration date.
B. When the Community Development Director or designee, denies renewal of the permit, the
applicant shall not be issued a permit under this Ordinance for one (1) year from the date of
denial. If, subsequent to denial, the Community Development Director or designee, finds that
the basis for denial of the renewal of the permit has been corrected, the applicant shall be
granted a permit if at least ninety (90) days have elapsed since the denial date.
SECTION 14. - SUSPENSION OF PERMIT.
A. The Community Development Director or designee, shall suspend a permit for a period not to
exceed thirty (30) days if the Director determines that a 'pe,,rmittee, or an employee of a
permittee, has:
1, Violated or is not in compliance with any section of this Ordinance; or
2. Been under the influence of alcoholic beverages or a controlled substance while working
in the sexually oriented business premises; or
3. Refused to allow an inspection of sexually oriented business premises as authorized by this
Ordinance; or
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Ordinance No. 1196
Page 18
4. Knowingly permitted gambling by any person on the sexually oriented business premises;
or
5. Operated the sexually oriented business in violation of a building, fire, health or zoning
statute, code, ordinance or regulation, whether federal, state or local said determination
being based on investigation by the department or agency charged with enforcing said
rules or laws. In the event of such statute code, ordinance or regulation violation, the City
shall promptly notify the permittee of the violation and shall allow the permittee a seven
(7) day period in which to correct the violation. If the permittee fails to correct the
violation before the expiration of the seven (7) day period, the City shall forthwith suspend
the permit and shall notify the permittee of the suspension; or
6. Engaged in permit transfer contrary to Section 17 of this Ordinance. If a permit is
suspended on the grounds that a permittee engaged in a permit transfer contrary to
Section 17 of this Ordinance, the Community Development Director or designee shall
forthwith notify the permittee of the suspension. The suspension shall remain in effect
until the applicable section of this Ordinance has been satisfied; or
7. Operated the sexually oriented business in violation of the hours of operation set forth in
Section 22; or
8. Knowingly employs a person who does not have a valid license as required in Section 18
of this Ordinance.
B. The suspension shall remain in effect until the violation(s) of the statute, code, ordinance
or regulation in question has been corrected as determined by the City.
SECTION 15. REVOCATION OF PERMIT.
A. The Community Development Director or designee shall revoke a permit if a basis for
suspension described in Section 14 of this Ordinance occurs, and the permit has previously
been suspended within the preceding twelve (12) months.
B. In addition, the Community Development Director or designee, shall revoke a permit upon
determining that:
1. A permittee gave false or misleading information in the application material submitted
during the application process; or
2. A permittee or a management employee of permittee has knowingly allowed possession,
use or sale of controlled substances on the premises; or
3. A permittee or a management employee has knowingly allowed prostitution on the
premises; or
4. A permittee or employee knowingly operated the sexually oriented business during a
period of time when the permittee's permit was suspended; or
5. A permittee has been convicted of a '~pecified criminal act" during the time period of the
permits; or
6. On two or more occasions within a twelve (12) month period, a person or persons
committed an offense, occurring in or on the permitted premises, constituting a specified
criminal act for which a conviction has been obtained, and the person or persons were
employees of the sexually oriented business at the time the offenses were committed. The
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Ordinance No. 1196
Page 19
fact that a conviction is being appealed shall have no effect on the revocation of the
permit; or
7. A permittee or a management employee has knowingly allowed an act of sexual
intercourse, sodomy, oral copulation, masturbation or any other specified sexual activities
to occur in or on the permitted premises. -
8. A permittee has been operating more than one sexually oriemed business under a single
roof.
C. A Notice of Proposed Revocation and the basis for it shall be provided in writing to the
permittee who shall have the opportunity to respond orally, or in writing (at permittee's
discretion) to the Community Development Director within five (5) days of delivery by
facsimile, messenger of the notice to the permittee. If the permittee does not respond, within
the five (5) day period, the revocation shall be deemed final. Otherwise, and except as
otherwise provided herein, the revocation shall be deemed final upon delivery of a Notice of
Revocation by facsimile, messenger, or personal delivery to the Permittee.
D. A revocation may be appealed to the City Council by filing a letter request stating the
grounds for appeal with the City Clerk. Such appeal shall be filed within five (5) days of
delivery of the Notice of Revocation, except that such time shall be automatically extended
by one day if the fifth day is a day when City Hall is closed. A timely appeal shall stay the
revocation.
E. The City Clerk shall set a hearing on an appeal at the next regula~y scheduled City Council
meeting. The City CoUncil shall take action on the appeal within forty five (45) days of the
filing of the appeal, unless the appellant has requested a continuance(s) and the
continuance(s) has been granted. Action by the City Council is final.
F. When the Community Development Director or designee or City Council revokes a permit,
the revocation shall continue for one (1) year and the permittee shall not be issued a sexually
oriented business permit for one (1) year from the date revocation became effective. If,
subsequent to revocation the Community Development Director or designee finds that the
basis for revocation has been corrected, the applicant shall be granted a permit
SECTION 16. PERMIT DENIAL/REVOCATION.
Af[er denial of an application, or denial of a renewal of an application, the applicant or permittee
may seek review of such action by an appeal to the City Council by filing a letter request within
five (5) business days of delivery of notice of denial to the applicant/permittee with the City
Clerk. The provisions of Section 16. D. and E. shall apply. A timely appeal shall stay the denial
of an applicant or renewal of a permit. If the denial, suspension or revocation is affirmed upon
review, the administrative action may be reviewed by the Court.
SECTION 17. UNAUTHORIZED OPERATION/TRANSFER OF PERMIT.
A. A permittee shall not operate a sexually oriented business under the authority of a permit at
any place other than the address designated in the application for permit.
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Ordinance No. 1196
Page 20
B. A permittee shall not transfer a permit to another person unless and until such other person
has applied and been approved for issuance of a permit under this ordinance and pays a
transfer fee of twenty percent (20%) of the annual permit fee.
C. No permit may be transferred after the Cormnunity Development Director or designee has
notified the permittee that suspension or revocation proceedings have been or will be brought
against the permittee in that a removal of a permit has been denied, until the permit in
question is reestablished in good standing.
D. Any attempt to transfer a permk either directly or indirectly in violation of this Section is
hereby declared void.
SECTION 18. SEXUALLY ORIENTED SERVICE PROVDERS'LICENSE.
A. Each individual who provides services of any kind whether or not an employee, independent
contractor, or sole proprietor in a sexually oriented business, except for the permitee(s)
holding a permit under Section 10 of this ordinance, shall be required to obtain a Sexually
Oftented Service Providers License. Each applicant shall pay a permit fee of forty dollars
($40.00). Said fee is to cover reasonable investigative administrative costs of the licensing
application process.
B. Before any applicant may be issued a Sexually Oriented Business Service Providers License,
the applicant shall submit on a City provided form under penalty of perjury, th{i following
information:
1. The applicant's name or any other names (including '~tage" names) or aliases used by the
individual;
2. Age, date and place of birth;
3. Height, weight, hair and eye color;
4. Current residence address and telephone number;
5. Current business address and telephone number;
6. State driver's license or identification number;
7. Social security number;
8. Acceptable written 'proof that the individual is at least eighteen (18) years of age.
9. Attached to the application form as provided above, a color photograph of the applicant
clearly showing the applicant's face, and the applicant' s fingerprints on a form provided by
the Tustin Police Department. Fees for the photographs and fingerprints shall be paid by
the applicant.
10. A statement detailing the applicant's sexually oriented business license or permit history
for the five (5) years immediately preceding the date of the filing of the application,
including whether such applicant previously operating or seeking to operate, in this or any
other county, city state or country has ever had a license, permit or authorization for a
sexually oriented' business denied, revoked or suspended or had any applicable
professional or vo,cational license permit denied, revoked or suspended. If any such
denial, revocation, or suspension, state the date, name of the issuing or denying
2o
Ordinance No. 1196
Page 21
jurisdiction and describe in full the reasons for the denial, revocation or suspension. A
copy of any order of denial, revocation or suspension shall be attached to the application.
11. Whether the applicant has been convicted of a '~pecified criminal" act as defined in this
Ordinance. This information shall include the date, place and nature of each conviction
and identifying the convicting jurisdiction, and,
12. The Community Development Director or designee shall refer the Sexually Oriented
Business Service Providers License Application to the Tustin Police Department for an
investigation to be made of such information as is contained on the application. The
application process shall be completed Within ten (10) days from the date the completed
application is filed. After the investigation, the Community Development Director or
designee shall issue a license unless the report from the-Tustin Police Department finds
that one or more of the following findings is true:
a. That the applicant has knowingly made any false, misleading or fraudulent statement of
a material fact in the application for a license, or in any report or record required to be
filed with the Police Department or other City department or agency;
b. That the applicant is under eighteen (18) years of age;
c. That the applicant has been convicted of a '~pecified criminal act" as defined in this
Ordinance within the last five (5) years.
d. That the Sexually Oriented Business Service Provider License is to be used for
employment in a business prohibited by local or state law, statute, rule or regulation,
or prohibited by particular provisions of this Ordinance;
e. That the applicant has had a Sexually Oriented Business Service Provider License
revoked by the City within two (2) years of the date of the current application.
f. The license fee required by this ordinance has not been paid.
C. Kenewal of License:
1. A license granted pursuant to this Section shall be subject to annual renewal by the
Community Development Director or designee upon the written application of the
applicant and a finding by the Community Development Director or designee and the
Tustin Police Department that the applicant has not been convicted of any specified
criminal act as defined in this Ordinance within the last five (5) years or the applicant has
committed any act during the existence of the previous license period which would be
grounds to deny the initial permit application; or the applicant has not violated any
provisions of this ordinance.
2. The renewal of the license shall be subject to payment of a fee in the amount of $40.00
D Appeals:
A denial of an application, or a renewal, or the suspension or revocation of a license may be
appealed in the same manner as appeal on sexually oriented business.
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Ordinance No. 1196
Page 22
SECTION 19. REGULATIONS PERTAINING TO EXHIBITION OF SEXUALLY
EXPLICIT FILMS OR VIDEOS IN VIDEO BOOTHS.
A. A person who operates or causes to be operated a sexually oriented business, other than a
sexually oriented mOtel/hotel and regardless of whether or not a permit has been issued to said
business under this Ordinance, which exhibits on the premises in a viewing room of less than
one hundred fifty (150) square feet of floor space, a film, video cassette or other video
reproduction which depicts specified sexual activities or specified anatomical areas, shall
comply with the following requirements:
1. Upon application for a sexually oriented business permit, the application shall be
accompanied by a detailed site and building plan specifying the location of one or more
manager's stations, the location of all overhead lighting fixtures and designating any
portion of the premises in which patrons will not be permitted. A manager' s station may
not exceed thirty-two (32) square feet of floor area with no dimension greater than eight
(8) feet. The diagram shall also designate the place at which this permit will be
conspicuously posted, if granted. A professionally prepared diagram in the nature of an
engineer's or architect's blueprint shall not be required; however, each site and building
plan shall be oriented to the north or to some designated street or object and should be
drawn to a scale not less that~ 1 inch = 20 feet. The Community Development Director or
designee, may waive the foregoing diagram for renewal applications if the applicant adopts
a site and building plan that was previously submitted and certifies that the configuration
of the premises has not been altered since it was prepared.
2. The application shall be sworn to be true and correct by the applicant. The applicant(s)'
and owner(s)' signatures shall be notarized.
3. No alteration in the configuration or location of a manager' s station may be made without
prior City approval.
4. The owners and operator of the premises shall insure that at least one employee is on duty
and situated at each manager's station at all times that any patron is present inside the
premises.
5. The interior of the premises shall be configured in such a manner that there is an
unobstructed view from a manager's station of every area of the premises to which any
patron is permitted access for any purpose, excluding rest rooms. Rest rooms may not
contain video reproduction equipment. If the premises have two or more manager's
stations designated~ then the interior of the premises shall be. configured in such a manner
that there iS an unob'structed view of each area of the premises to which any patron is
permitted access for any purpose from.at least one of the manager's stations. The view
required in this subsection must be direct line of sight from the manager' s station.
6. It shall be the duty of the owners and operator, and it shall also be the duty of any agents
and employee present on the premises to insure that the view area specified in Subsection
5 remains unobstructed by any doors, walls, merchandise, display racks or other materials
22
Ordinance No. 1196
Page 23
or person at all times and to insure that no patron is permitted access to any area of the
premises which has been designated as an area in which patrons will not be permitted in
the application filed pursuant to Subsection A. of this Section.
7. No viewing room may be occupied by more than one person at any one time. No holes,
commonly known as '1glory holes", shall be allowed in the walls or partitions which
separate each viewing room from an adjoining viewing room or restroom.
8 The premises shall be equipped with overhead lighting fixtures of sufficient intensity to
illuminate every place to which patrons are permitted access and an illumination of not less
than two (2.0) foot candle as measured at the floor level.
9. It shall be the duty of the owners and operator and it shall also be the duty of any agents
and employees present on the premises to insure that the illumination described above iS
maintained at all times that any patron is present on the premises.
B. A person having a duty under Section 19. A. 1.-9. shall be guilty of a misdemeanor if he/she
knowingly' fails to fulfill that duty.
SECTION 20. PROHIBITIONS REGARDING MINORS AND SEXUALLY ORIENTED
BUSINESSES.
A person is prohibited from and is guilty of a misdemeanor if he/she operates or causes to be
operated a sexually oriented business, regardless of whether or not a permit has been issued for
said business under this Ordinance, and knowingly or with reasonable cause to 'know, permit,
suffer, or allow:
A. Admittance of a person under eighteen (18) years of age to enter the business premises unless
accompanied by a parent or guardian;
B. A person under eighteen (18) years of age to remain at the business premises unless
accompanied by a parent or guardian;
C. A person under eighteen (18) years of age to purchase goods or services at the business
premises without the specific consent of a parent or guardian; or
D. A person who is under eighteen (18) years of age to work at the business premises as an
employee.
SECTION 21. ADVERTISING AND LIGHTING REGULATIONS.
A. It shall be unlawful and a person shall be guilty of a misdemeanor if he/she operates or causes
to be operated a sexually oriented business, and advertises the presentation of any. activity
prohibited by any applicable state statute or local ordinance.
23
Ordinance No. 1196 '
Page 24
B. It shall be unlawful and a person shall be guilty of a misdemeanor if he/she operates or causes
to be operated a sexually oriented business, and displays or otherwise exhibits the materials
and/or performances at such sexually oriented business in any advertising which is visible
outside the premises. This prohibition shall not extend to advertising of the existence, name,
or location of such sexually oriented business.
C. The interior premises of a sexually oriented business shall not be visible from outside the
premises.
D. All off-street parking areas and premise entries of a sexually oriented business shall be
illuminated from dusk to closing hours of operation with a lighting system which provides an
average maintained horizontal illumination of one-(1.0) foot-candle of light on the parking
surface and/or walkways. This required lighting level is established to provide sufficient
illumination of the parking areas and walkways serving the sexually oriented business for the
personal safety of patrons and employees and to reduce the incidence of vandalism and
"criminal conduct. A lighting plan shall be submitted to the Community Development Director
or designee.
E. Nothing contained in this Section shall relieve the operator(s) of a sexually oriented business
from complying with the requirements of this Ordinance, zoning, building, health and fire
codes as may be amended form time to time or any subsequently enacted City ordinances or
regulations.
F. The regulations contained in this section apply regardless of whether a person has a valid
permit under this ordinance.
SECTION 22. HOURS OF OPERATION.
These regulations apply regardless of whether a person has a valid permit under this ordinance.
A. It shall be unlawful and a person is guilty of a misdemeanor if he/she operates or causes to be
operated a sexually oriented business, and allows such business to remain open for business or
to permit any service prorider in the business to engage in a performance, solicit a
performance, make a sale, solicit a sale, provide a service or solicit a service; between the
hours of 12:00 a.m. and 9:00 a.m. of any particular day.
B. It shall be unlawful and a person is guilty of a misdemeanor if, working as a service provider
in a sexually oriented business, the service provider engages and performs, solicits a
performance, makes a sale, solicits a sale, provides a service, or. solicits a service between the
hours of 12:00 a.m. and 9:00 a.m. of any particular day.
SECTION 23. PARKING.
Sexually oriented businesses shall comply with the parking requirements set forth in the
respective zoning district and the City of Tustin Parking Design Standards and Landscape
24
Ordinance No. 1196
Page 25
and Irrigation Guidelines. The number of parking spaces provided shall be the equivalent of
that required for new construction, regardless of the status of the legal n0nconforming
parking rights of the previous use.
SECTION 24. SECURITY
Each sexually oriented business shall provide a security system that visually records and
monitors all parking lot areas serving the use. All indoor areas of the business shall be open
to public view at all times with exception of restroom facilities. '~ccessible to the public"
shall include those areas which are only accessible to members of the public who pay a fee
and/or join a private club or organization. Further, the sexually oriented business shall
provide security guards, who are state licensed, armed, uniformed and approved by the City
of Tustin Police Department, during all hours of operation. The number of such guards so
required shall be determined by the Chief of Police, and such number may be increased, at the
Chiefs discretion, if such increase is necessary to protect the public peace and the
surrounding neighborhood.
SECTION 25. REGULATIONS PERTAINING TO LIVE ENTERTAINMENT.
These regulations apply regardless of whether a sexually oriented business has a valid permit to
operate.
A. For purposes of this Section, 'live entertainment" is defined as a person who appears nude,
semi-nude or a performance which is characterized by the exposure of '~pecified anatomical
areas" or by "specified sexual activities".
B. No person shall perform live entertainment for patron(s) of a sexually 'oriented business except
upon a stage at least eighteen (18) inches above the level of the floor which is separated by a
distance of at least ten (10) feet from the nearest area occupied by patron(s). No patron shall
be permitted within ten (10) feet of the stage while the stage is occupied by a performer.
C. The sexually oriented business shall provide separate dressing room facilities for female and
male performers which shall not be occupied or used in any way by any one other than
performers.
D. The sexually oriented business shall provide access for performers between the stage and the
dressing rooms which is completely separated from the patrons. If such separate access is not
physically feasible, the establishment shall provide a minimum four (4) foot wide walk aisle
for performers between the dressing room area and the stage with a railing, fence or other
barrier separating the patrons and the performers which prevents any physical contact between
patrons and performers.
E. No entertainer, either before, during or after a performance, shall have physical contact with
any patron and no patron shall have physical contact with any entertainer' either before, during
or after a performance. This subsection shall only apply to physical contact while in or on the
premises of the establishment.
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Ordinance No. 1196
-Page 26
F. Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations
between performers and patrons required by this section.
G. No patron shall directly pay or give any gratuity to any entertainer. A patron who wishes to
pay or give a gratuity to a performer shall place the gratuity in a container that is at all times
located separately from the performeis for the purpose of preventing any physical contact
between a patron and a performer. No performer shall solicit any gratuity from any patron.
H. No operator of a sexually oriented business establishment shall cause or allow a performer to
Contract or engage in any entertainment such as a "couch" or a '!~traddle" dance with a patron
while in or on the establishment premises. No performer shall contract to or engage in a
'l~ouch" or '~traddle'; dance with a patron while in or on the establishment premises. For
purposes of this subsection, 'l:ouch" or '~traddle" dance is defined as an employee of the
establishment intentionally touching or coming within ten (10) feet of any patron while
engaged in the display or exposure of any '~pecified anatomical area'; or any '~peci~ed sexual
activity". For purposes of this subsection, "employee" is defined as it is in Section 2.B.
I. This section shall not apply to an employee of a sexually oriented business who, while acting
as a waiter, waitress, host, hostess or bartender, comes within ten (10) feet of a patron. No
employee shall engage in any specified sexual activity or display or expose any specified
anatomical area while acting as a waiter, waitress, host, hostess or bartender.
J. Compliance with this section:
1. No 'sexually oriented business shall be deemed in compliance with this Section until the
City's designated agent(s) have inspected and approved compliance. The City shall have
ten (10) days from the date it receives written notice from the operator that the business is
ready for inspection to approve or disapprove of compliance required by this Section.
Failure of the City to approve or disapprove compliance within ten (10) days shall
constitute a finding of compliance under this Section.
2. The operator of a sexually oriented business, that has been providing live entertainment
under a valid sexually oriented business permit, shall have the time periods listed below in
which to bring the' establishment into compliance with this Section. Failure to do so while
continuing to provide life entertainment shall cause the establishment's permit to be
suspended under this Ordinance. The permit shall remain suspended until the
establishment is approved by the City's designated agent(s) as being in full compliance
with this Section.
3. The operator of an existing .sexually oriented business operating under a valid permit who
wishes to provide live entertainment, shall apply for and receive a second sexually oriented
business permit for the live entertainment before .any live entertainment is provided at that
establishment. No live entertainment permit shall be issued until the establishment is
approved as being in full compliance with this Section, all other applicable requirements of
this Ordinance, and the City zoning, building, health, and fire codes.
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Ordinance No. 1196
Page 27
4. Subsection B shall become effective sixty (60) days from the effective date of this
ordinance.
5. Subsection C shall become effective ninety (90) days from the effective date of this
ordinance.
6. Subsection D shall become effective ninety (90) days from the effective date of this
ordinance.
7. Subsection E shall become effective upon adoption of this ordinance.
8. Subsection F shall become effective sixty (60) days from the effective date of this
ordinance.
9. Subsection G shall become effective upon adoption of this ordinance.
10. Subsection H shall become effective upon adoption of this ordinance.
SECTION 26. OPERATION OF A SEXUALLY ORIENTED BUSINESS WITHOUT A
VALID PERMIT.
A. In addition to the criminal provisions found in other sections of this Ordinance, the following
additional criminal provisions shall also apply to sexually oriented businesses.
B. It shall be unlawful and a person is guilty of a misdemeanor if he/she operates or causes to be
operated a sexually oriented business, regardless of whether or not a permit has been issued
for said business under this Ordinance, and said person knows or should know that:
1 The business does not have a sexually oriented business permit under this Ordinance;
2. The business has a suspended permit.
3. The sexually oriented business permit has been revoked or,
4. The business has a permit which has expired.
SECTION 27. CRIMINAL PENALTIES AND ADDITIONAL LEGAL, EQUITABLE
AND INJUNCTIVE RELIEF.
A. In addition to whatever penalties are applicable under the Tustin City Code, if any person fails
or refuses to obey or comply with or violates any of the provisions of this Ordinance, such
person upon conviction of such offense, shall be guilty of a misdemeanor and shall be
punished by a fine as provided by law or by imprisonment not to exceed sixty (60) days in the
City jail, or both, in the discretion of the Court. Each violation or non-compliance shall be
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Ordinance No. 1196
Page 28
considered a separate and distinct offense. Further, each day of continued violation or non-
compliance shall be considered as a separate offense.
B. Nothing herein contained shall prevent or restrict the City from taking such other lawful
action in any court of competent jurisdiction as is necessary to prevent or remedy any
violation or non-compliance. Such other lawful actions shall include, but shall not be limited
to an equitable action for injunctive relief or an action at law for damages.
C. Further, nothing in this Section shall be construed to prohibit the City from prosecuting any
violation of this Ordinance by means established pursuant to the authority as provided by the
laws of the City of Tustin.
D. All remedies and penalties provided for in this Section shall be cumulative and independently
available to the City and the City shall be authorized to pursue any and all remedies set forth
in this Section to the full extent allowed by law.
SECTION 28. REPEAL OF CONFLICTING PROVISIONS
All Tustin ordinances or parts of ordinances in conflict with the provision of this ordinance are
hereby repealed.
SECTION 29. SEVERABILITY.
If any Section, subsection sentence, clause, phrase or portion of this ordinance is for any reason
held out to be invalid or unconstitutional by the decision of any court of competent jurisdiction,
such decision shall not affect the validity of the remaining portions of this ordinance. The City
Council of this City of Tustin hereby declares that it would have adopted this ordinance and each
portion, section, subsection, sentence, clause phrase, or portion thereof irrespective of the fact
that any one or more section, subsection, sentences, clauses, phrases, or portion be declared
invalid or unconstitutional.
SECTION 30
This ordinance. is an Interim Ordinance, enacted pursuant to Government Code Section 65858(b).
The term of the Interim Ordinance shall be for a period of 45 days from the date of adoption,
unless legally extended in accordance with law by action of the City Council.
SECTION 32
This ordinance shall be adopted by a four-fifths (4/5) vote of the City Council and shall be
effective immediately upon such vote.
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Ordinance No. 1196
Page 29
PASSED, APPROVED, ADOPTED by the City Council of the City of Tustin at a regular
meeting held on the 17th day of February 1998.
JE E . OMAS, MAYOR
/
CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE )
CITY OF TUSTIN )
CERTIFICATION FOR ORDINANCE NO. 1196
PAMELA STOKER, City Clerk and ex-officio Clerk of the City Council of the 'City of Tustin,
California, does hereby certify that the whole number of the members of the City Council of the City of
Tustin is five; that the above and foregoing Interim Ordinance was passed and adopted at a regular
meeting of the City Council held on the 17th day of February 1998, by the following vote:
COUNCILPERSONSAYES: THOMAS, DOYLE, POTTS , WORLEY
COUNCILPERSONS NOES: NONE
COUNCILPERSONS ABSTAINED: NONE
COUNCILPERSONS ABSENT: SALTARELLI
Pa~6'l~'gto~er, City CI~k~. '
29