HomeMy WebLinkAboutORD 1204 (1998) ORDINANCE NO. 1204
AN 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 the City Council finds and determines the public 'health, safety, peace, and welfare
necessitates the enactment of this Ordinance for the 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. The City has received a
number of inquiries from representatives of such businesses 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 other land 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 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, Califomia (1991); Phoenix, Arizona
(1986); Minneapolis, Minnesota (1'980); 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,
D. That from review of other cities'. studies there is convincing documented evidence that
sexually oriented businesses, because of their operations, have a deleterious effect on 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 business operations have serious objectionable
operational characteristics, particularly when they are operating in close proximity to each
Ordinance No. 1204
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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,
pandefing, exposing minors to harmful matter, possession and distribution of obscene
materials. and child pomography; and, possession and sale of controlled substances and
violent crimes against persons and property; and
H. That sexually transmitted diseases, including AIDS, are legitimate health concerns which
demand 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
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 and control 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-H 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. In developing this ordinance, the City Council has been mindful of legal principles relating to
regulation of sexually oriented businesses and does not intend to suppress or infringe upon
any expressive activities protected by the First Amendments of the United States and
California Constitutions, but instead desires to enact reasonable, time, place, and manner
regulations that address the adverse secondary effects of sexually oriented businesses. The
City Council has been mindful of the decisions of the United States Supreme Court regarding
local regulations of sexually oriented businesses, including but not limited to: Young v.
American Mini-Theaters, Inc., 427 U.S. 50 (1976) rehL denied 429 U.S. 873; Renton 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 Theater, 501 U.S. 560 (1991); United States Court
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Ordinance No. 1204
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of Appeals, Ninth Circuit decisions, including but not limited to: Topanga Press, Inc., et al.
V. City of Los Angeles, 939 F. 2d 1525 (1993); and several California cases including, but
not limited to: City of National City v. Wiener, et al., 3 Cal. 4th 832 (1993); People v.
Superior Court (Lucero), 49 'Cal.3d 14 (1989); and City. of Vallejo v. Adult Books, et al., 167
Cal.App.3d 1169 (1985); and other federal cases including: Lakeland Lounge v. City of
Jacksonville, (5th Cir. 1992)973 F.2d 1255, Hang On, Inc. v. Arlington, (5th Cir. 1995) 65
F.3d 1248, Mitchell v. Commission on Adult Entertainment, (3~a Cir. 1993) 10 F.3d 123";
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 time, place and manner ordinance
which addresses the adverse secondary effects caused by sexually oriented businesses; and
P. That in adopting this ordinance, the City Conncil does not condone or legitimize the
distribution of obscene material and recognizes that state law brohibits the distribution of
obscene materials; and,
Q. That the City Council specifically finds the following:
1. Evidence indicates that some dancers, models and entertainers, and other persons who
publicly perform specified sexual activities or publicly displayed specified anatomical
parts in sexually oriented businesses (collectively referred to as "Performers") have been
found to engage in sexual activities with patrons of sexually oriented businesses on the
site of the sexually oriented business;
2. Evidence has demonstrated that performance of employees of sexually oriented
businesses have been found to offer and provide private shows to patrons who, for a
price, are permitted to observe and participate with the performers in live sex shows;
3. Evidence indicates that performers of sexually oriented businesses have been found to
engage in acts of prostitution with patrons of the establishment; 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 (9th Cir. 1986) (six feet); Key, Inc. v Kitsap County., 793 F.2d 1091 (9th 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
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contact including-sexual contact, and, an Orange County Superior Court upheld such actions
by the City of Newport Beach; and
S. That preventing prostitution, drug transactions and the spread of sexually transmitted
diseases are legitimate governmental interests. 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 mitigating these adverse
negative secondary effects: created by sexually oriented businesses; and
T. The Planning Commission, in recommending adoption of the Negative Declaration of
Environmental Impact under the provisions of the California Environmental Quality Act,
specifically finds that the adoption of this Ordinance will have a diminimis impact on fish
and wildlife resources. The Planning Commission specifically finds that in considering the
record as a whole, the project - including the adoption of this Ordinance - involves no
potential adverse effect, either individually or cumulatively, on wildlife as the same is
defined in Section 711.2 of the Fish and Game Code. This is based on the fact that this
Ordinance adds additional regulations on the development of sexually oriented businesses
designed. to reduce the secondary effects of such businesses on the community and the
environment. The project includes the adoption of additional regulations for sexually
oriented businesses which should mitigate negative impacts on the environment.
Furthermore, the Planning Commission considered the initial study prepared for this
ordinance which evaluated the potential for adverse impact on the environment and forms the
basis for the Planning Commission's recommendation to the City Council, including the
information contained in the public hearing records, on which a Negative Declaration of
Environmental Impact was issued and this diminimis finding is made. In addition, the
Planning Commission finds that there is no evidence before the City that the proposed
project, (i.e., this Ordinance), will have any potential for an adverse effect on wildlife
resources, or the habitat on which the wildlife depends; and
U. Code Amendment 98-003 is consistent with and implements the policies, goals, and
objectives of the Tustin Area General Plan. The regulation of sexually oriented businesses
will help preserve the existing land use patterus in the City's sound and stable
neighborhoods. Specifically this ordinance furthers the goals and policies established in the
Land Use Element Goals 1, 3 and 6.
V. That, on February .17, 1998, the City Council adopted Urgency Ordinance No. 1196
regulating sexually oriented businesses. Due to the immediate need to adopt an interim
ordinance, time did not allow for the required noticing and public heating procedures;
therefore, Ordinance No. 1196 could only be effective for 45 days.
W. That, on March 2, 1998 the Council adopted Ordinance No. 1198 and the required noticing
and public hearing procedures were followed; therefore, the interim ordinance could be
effective for 10 months and 15 days.
X. That, a permanent ordinance has been prepared for consideration and hearings before the
Planning Commission and City Council, respectively.
Y. Pursuant to the provisions of the California Environmental Quality Act, an environmental
checklist and negative declaration were prepared for the amendment and were available for
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public review beginning July 24, 1998. The proposed project is regulatory in nature; as such,
no significant impacts are anticipated. When specific site development plans are proposed in
accordance with these provisions, independent environmental analysis will occur.
Z. That the Planning Commission did on the 24th day of August, 1998, hold duly noticed public
hearing as prescribed by law to consider said request and recommended that the City Council
adopt Ordinance No, 1204; and,
AA.That the City Council did on the 21st day of September and the 5th day of October, 1998, hold
duly noticed public hearings as prescribed by law to consider said request; and,
BB.That, at said public hearings, upon hearing and considering all testimony and arguments, if
any, of all persons desiring to be heard, said Council considered all factors relating to Code
Amendment 98-003 (Ordinance No. 1204).
NOW THEREFORE, the City Council of the City of Tustin does ordain as follows:
SECTION 2. PURPOSE.
The purpose of this Ordinance is: (1) to establish reasonable time, place and manner regulations
for sexually oriented businesses within the legal framework of the First Amendment; .(2) to
protect the health, safety and general welfare of the citizens of the City of Tustin from the
deleterious location and concentration of sexually oriented businesses within the City; and, (3)
to eliminate the adverse secondary effects caused by sexually oriented businesses. The
provisions of this ordinance have neither the purpose nor effect of imposing a limitation,
restriction or unconstitutional prior restraint on the content of any communicative materials or
'activities, related to sexually oriented businesses.
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. "Adult 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. "Adult Bookstore," "Adult Novelty Store," or "Adult 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
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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
"specific sexual activities" or "specified anatomical areas";
b. Instruments, devices, or paraphemalia 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 that do not
involve the offering for sale rental or viewing of materials depicting or
describing "specified sexual activities" or "specified 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 "specified 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 "specified anatomical areas" or by "specified sexual activities".
4. "Adult motel" means a motel, hotel or similar commercial establishment
which derives a significant or substantial portion of its revenues or devotes a
significant or substantial portion of its business and offers the following: (a)
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 "specified sexual activities" or
"specified 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) a sleeping room for rent for a period of time less than ten (10) hours;
or, (c) 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
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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" means a business establishment where:
patrons receive tanning services in groups of two (2) or more and where
patrons or employees 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. "Adult theater" means a theater, concert 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 its 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. This definition 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.
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c. "Establishment" or "Establish" with regard to a Sexually Oriented Business 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. "Nudity or State of Nudity" means the showing of the human male or female genitals,
public area, or buttocks with less than a fullly opaque covering, or showing of the female
breast with less than a fully opaque covering of any part or the nipple, or showing the
covered genitals in a discernable or turgid state.
E. '~Operator" means and includes the owner, permit holder, custodian, manager, operator or
person in charge of any permitted or licensed premises.
F. "Permitted or LicenSed Premises" means sexually oriented business that requires a
license and/or permit to operate.
G. "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.
H. "Person" means an individual, proprietorship, partnership, corporation, association or
other legal entity.
I. "Public building" means any building owhed, 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.
"Public park" or "recreation 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, wildemess area, or similar public land within the city which is
under the control, operation, or management of the city park and recreation authorities.
K. "Religious institution" means any church, synagogue, mosque, temple or building which
is used primarily for religious worship and related religious activities.
L. "Residential district or use" means property zoned for residential uses or occupied with
attached and detached single family residences, duplexes, townhouses, multiple family
Ordinance No. 1204 ?"',
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residences, mobile parks, patio homes, apartments, condominiums, stock cooperative
projects, and planned developments.
M. "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.
N. "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. Semi-nude shall also include a person with partial clothing
to include lingerie or similar clothing where specified anatomical areas are exposed.
O. "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.
P. "Specified anatomical areaS" means and includes any of the following:
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 genitals in a discernibly turgid state, even if completely and opaquely
covered.
3. Any device, costume or covering that simulates any of the body parts included in
subsection (1) or (2) above.
Q. 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 obscenity; 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.
R. "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;
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Page 10'
3. Masmrbation, 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.
s. "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 existed on
February 17, 1998.
T. "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 or other
operation of law upon the death of a person possessing the ownership or control.
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 other 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 ,
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c. any residential district or use
d. a public park
e. a public building
f. a boy's club, girls' club, or other 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 if a 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;
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 tiom 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
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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 "existing" sexually
oriented business is one that has a valid permit or one whose application has preceded the
application in question and is seeking approval. The subsequent establishment or permit
application of a sensitive u~e as defined in B. above 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 business lawfully operating on or before February 17, 1998, that is
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 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 (30) 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 shall be guilty of a misdemeanor, and any conviction thereof. shall be punishable by a
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Ordinance No. 1204
Page 13
fine of $1,000.00 and/or thirty (30) days imprisonment or by both such fine and imprisonment.
If an injunction must be sought, attorneys fees and costs will be assessed at the discretion of the
Court against such person.
SECTION 8. PERMIT REQUIRED.
A. Except as provided in Section 6, no person shall establish a sexually oriented business
without a valid City Sexually oriented business permit.
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 and all
development and performance standards under this chapter and the respective zoning
district in which the business is located.
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.
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 the provisions of this Chapter and applicable
statutes and City Codes.
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 parmership 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
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Ordinance No. 1204
Page 14
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 ~hose 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.
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)' ddver'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.
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Ordinance No. 1204
Page 15
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 as
defined in Section 5.B. 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
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
improperly 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.
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.
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Ordinance No. 1204
Page 16
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, independent contractors or other persons 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.
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. All investigations shall be completed within thirty (30) days of receipt of
the application.
SECTION 10. ISSUANCE OF PERMIT/CONDITIONAL GRANT.
A. The Community Development Director or designee,. shall grant, 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 a denial. A permit may be conditionally granted only 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
10.C.l.i. Such conditional grant shall not constitute a vested right to operate under the
permit.
If the Community Development Director or designee neither grants nor denies the
application within thirty (30) days after the complete application is stamped received
(except as provided in Section 8.H.), the application shall be forwarded to the City
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Ordinance No. 1204
Page 17
Council at its next regularly scheduled meeting for consideration in conformance with the
provisions of this Section.
B. Grant of Application for Permit
1. The Community Development Director or designee, shall grant the permit or
grant upon condition unless one or more of the criteria set forth in Section 10.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 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 has been denied a
permit to operate a sexually oriented business within the City within the
preceding twelve (12) months, or the applicant is 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.
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.
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Ordinance No. 1204
Page 18
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 "specified criminal acts" within
the above-described time periods may qualify and apply for a sexually
oriented business permit when the time period(s) has elapsed.
j. 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 in writing of the denial and state the reason(s) for
the denial. The applicant shall have the right to appeal in accordance with Section 16.
Pending a final decision on the appeal, the applicant shall not have the right to operate
or establish a sexually oriented business in the City.
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.
SECTION 11. ANNUAL APPLICATION/PERMIT FEE
The annual application/permit fee deposit for a sexually oriented business permit is one thousand
dollars ($1,000.00), respectively. If the City's actual 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 City's 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.
Ordinance No. 1204
Page 19
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 8 (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. When application for renewal is filed less than
thirty (30) days before the expiration date, the expiration date shall not be stayed.
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. An applicant for renewal of a permit shall have the right to appeal to the City
Council pursuant to Section 16 and unless their previous permit had been suspended or
revoked at the time the previous permit expired, the applicant may operate pending final
City Council action.
SECTION 14. GROUNDS FOR SUSPENSION/REVOCATION OF PERMIT.
A. SUSPENSION
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 permittee, 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
workingin the sexually oriented business premises; or
3. Refused to allow an inspection of sexually oriented business premises as
authorized by this Ordinance; or
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
19
Ordinance No. 1204
Page 20
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 grotmds 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; or
7. Operated the sexually oriented business in violation of the hours of operation set
forth in Section 22; or
8. Knowingly employed a person who does not have a valid license as required in
Section 18 of this Ordinance.
B. REVOCATION
The Community Development Director or designee shall revoke a permit if a basis for
suspension described in Section 14.A. of this Ordinance occurs, and the permit has previously
been suspended within the preceding twelve (12) months. 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 managemeni employee has knowingly allowed prostitution on the
premises; or
4. A permittee or management 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 "specified 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 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 oriented business under a single
roof.
2O
Ordinance No. 1204
Page 21
SECTION 15. NOTICE AND HEARING ON PROPOSED
SUSPENSION/REVOCATION
A. On determining that grounds for permit suspension or revocation exist, the Community
Development Director shall furnish written Notice of the Proposed Suspension or
Revocation to the permittee. Such notice shall set forth the time and place of a hearing,
and the ground or grounds upon which the hearing is based, the pertinent Code sections,
and a brief statement of the factual matters in support thereof. The notice shall be mailed,
postage prepaid, certified, return receipt requested, addressed to the last known address of
the permittee, or shall be delivered to the permittee personally, at least ten (10) days prior
to the hearing date. Hearings shall be conducted in accordance with procedures
established by the Community Development Director, but at a minimum shall include the
following:
All parties involved shall have a right to offer testimonial, documentary,
and tangible evidence bearing on the issues; may be represented by
counsel; and shall have the right to confront and cross-examine witnesses.
Any relevant 'evidence may be admitted that is the sort of evidence upon
which reasonable persons are accustomed to rely in the conduct of serious
affairs. Any hearing under this Section may be continued by the
Community Development. Director for good cause. The Community.
Development decision may be appealed to the City Council in accordance
with Section 16 of this ordinance.
B. Thedecision of the Community Development Director shall be in writing, and if the
decision is to suspend or revoke the permit, a Notice of Suspension or Notice of
Revocation shall be delivered to the permittee. If personally delivered, or by facsimile,
delivery shall be complete upon the day of delivery. If delivered by any other means,
delivery .shall be complete upon the date of signed receipt.
SECTION 16. APPEAL OF PERMIT DENIAL/SUSPENSION/REVOCATION.
A. After denial of an application, or denial of a renewal of an application, Notice of a
Suspension or Notice of a Revocation of a permit by the Community Development
Director, the. applicant or permittee may seek review of such action by an appeal to the
City Council by filing a letter request with the City Clerk within five (5) business days of
delivery of the Notice of Denial, Notice of Suspension, or Notice of Revocation to the
applicant/permittee. A timely appeal shall stay the denial of renewal of an application
(except. as provided in Section 13.B.), a suspension, or a revocation until final action by
the City Council.
B. The City Clerk shall set a hearing on an appeal at a next regularly 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. The applicant or
21
Ordinance No. 1204
Page 22
permittee may seek prompt judicial review pursuant to CCP Section 1094.5 and the City
shall make all reasonable efforts to expedite judicial review if sought.
C. 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 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.
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 Community 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 permit either directly or indirectly in violation of this Section is
hereby declared void.
SECTION 18. SEXUALLY ORIENTED SERVICE PROVIDERS 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 Oriented 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, the
following information:
1. The applicant's name or any other names (including "stage" 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;
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Ordinance No. 1204
Page 23
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 vocational license permit denied, revoked or
suspended. If any such denial, revocation, or suspension, state the date, name of the
issuing or denying 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; and
11. Whether the .applicant has been 'convicted of a "specified 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 five (5) business 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 "specified 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.
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Ordinance No. 1204
Page 24
C. Renewal 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 $40200
D. Appeals:
A denial of an application, or a renewal, or the suspension or revocation of a license shall be
processed by the city and shall be subject to appeal in the same manner as permits for a
sexually oriented business. See Sections 15 and 16.
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.
24
Ordinance No. 1204
Page 25
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. Restrooms 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 unobstructed 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
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 "glory 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 illumifiation 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:
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Ordinance No. 1204
Page 26
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.
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.
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Ordinance No. 1204
Page 27
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 provider 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
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 nonconforming
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. "Accessible 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 "specified anatomical
areas" or by "specified sexual activities".
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Ordinance No. 1204
Page 28
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.
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 performers 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 "straddle" dance with a
'patron while in or on the establishment premises. No performer shall contract to or engage
in a "couch" or "straddle" dance with a patron while in or on the establishment premises.
For purposes of this subseCtion, "couch" or "straddle" 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 "specified anatomical area", or any "specified
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.
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Ordinance No. 1204
Page 29
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.
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.
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Ordinance No. 1204
Page 30
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 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.
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'Ordinance No. 1204
Page 31
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.
PASSED, APPROVED, ADOPTED by the City Council of the City of Tustin at a regular
meeting held on the 5th day of October, 1998.
TX O _AS
Mayor
EAB :kbm\ordinanc\ 1204sob. doe
31
~.f""' City of Tustin ~
ORDINANCE CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN )
ORDINANCE NO. 1.204
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 Ordinance No. 1204 was introduced at a
regular meeting of the City Council on September 21, 1998, and was passed and adopted at a
regular meeting of the City Council held on October 5, 1998 by the following vote:
COUNCILMEMBER AYES: Saltarelli, Worley, Doyle, Potts
COUNCILMEMBER NOES: None
COUNCILMEMBER ABSTAINED: None
COUNCILMEMBER ABSENT: Thomas
(~~ela Stoker, City Clerk