Sections
17.41.010 Findings.
17.41.020 Definitions–Adult business.
17.41.030 Additional definitions.
17.41.040 Definitions–Specified anatomical areas and specified sexual activities.
17.41.050 Adult use planning permit–Adult business–Application.
17.41.060 Referral of application for investigation.
17.41.070 Reservation of right to review adult use planning permit–Changed conditions.
17.41.080 Time limit for land use review and decisions–Adult Use Planning Permits.
17.41.090 Reserved.
17.41.100 Reserved.
17.41.110 Continuation of nonconforming buildings and uses.
17.41.120 Reserved.
17.41.130 General provisions.
17.41.140 Location, design, and performance standards.
17.41.150 Couch dancing/straddle dancing and other sexual activities prohibited.
17.41.160 Establishment of an adult business.
It is the purpose and intent of this chapter to provide for the reasonable and uniform regulation of adult businesses in the city. It is recognized that adult businesses have a serious deleterious effect upon adjacent areas, as well as the areas in which they are located. It is therefore the purpose of this chapter to establish criteria and standards for the establishment and conduct of adult businesses which will protect the public health, safety, and welfare, preserve locally recognized values of community appearance, minimize the potential for nuisances related to the operation of adult businesses, and maintain local property values. It is the purpose and intent of this chapter to establish proper regulations and to provide for a reasonable number of approximately located sites for adult businesses within the city, based upon the following findings:
(A) The City Council has reviewed the detailed studies, reports and letters prepared by other jurisdictions and its own staff with respect to the detrimental social, health, and economic effects on persons and properties surrounding adult businesses. These studies included Upland, California (1992); Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1984); Houston, Texas (1983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); State of Minnesota, Attorney General Report (1989); Newport News, Virginia (1996); St. Paul, Minnesota (1987); Corpus Christi, Texas (1995); and National Law Center (1995) (collectively "Studies"). The Studies, a summary of which is attached hereto as Exhibit "A,” substantiate the adverse, secondary effects of adult businesses.
(B) Based on the foregoing Studies and the other evidence presented, the City Council finds that:
(1) Adult businesses are linked to increases in the crime rates of those areas in which they are located and that surround them; and
(2) Both the proximity of adult businesses to sensitive land uses and the concentration of adult businesses tend to result in the blighting and downgrading of the areas in which they are located.
(C) The Studies conducted in various communities in other jurisdictions have demonstrated that the proximity and concentration of adult businesses adjacent to residential, recreational, religious, educational or other adult businesses can cause other businesses and residents to move elsewhere.
(D) The Studies conducted in various communities in other jurisdictions have demonstrated that adult businesses are linked to increases in the crime rates and blighting of those areas in which they are located and that surround them.
(E) The special regulation of adult businesses is necessary to ensure that their adverse secondary effects will not contribute to an increase in the crime rates or the blighting or downgrading of the areas in which they are located or surrounding areas. The need for the special regulation is based on the recognition that adult businesses have serious objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances or located in direct proximity with sensitive uses such as residential zones and uses, parks, schools, churches or day care centers, thereby having a deleterious effect upon the adjacent areas.
(F) It is the purpose and intent of these special regulations to prevent the concentration or location of adult businesses in a manner that would create such adverse secondary effects. Thus, in order to protect and preserve the public health, safety, and welfare of the citizenry, especially including minors, the special regulation of the time, place, and manner of the location and operation of adult businesses is necessary.
(G) The protection and preservation of the public health, safety, and welfare require that certain distances be maintained between adult businesses and residential uses and zones, churches, schools, day care centers, parks, and other adult businesses.
(H) The need to regulate the proximity of adult businesses to sensitive land uses such as residential, religious, educational, recreational, and other adult businesses are documented in Studies conducted by other jurisdictions as listed elsewhere in this section.
(I) The report of the state of Minnesota Attorney General's Working Group on the regulation of sexually oriented businesses dated June 6, 1986, indicated that:
(1) Community impacts of sexually oriented businesses are primarily a function of two variables, proximity to residential areas and concentration. Property values are directly affected within a small radius, typically one block, of the location of a sexually oriented business. Concentration may compound depression of property values and may lead to an increase of crime sufficient to change the quality of life and perceived desirability of property in a neighborhood; and
(2) The impacts of sexually oriented businesses are exacerbated when they are located near each other. When sexually oriented businesses have multiple uses (such as theater, bookstore, nude dancing, peep booths), one building can have the impact of several separate businesses.
(J) In consideration of the findings of the report of the state of Minnesota Attorney General's Working Group on the regulation of sexually oriented businesses dated June 6, 1986, it is appropriate to prohibit the concentration of multiple adult businesses within one building in order to mitigate the compounded adverse secondary effects associated with such concentrations as described above.
(K) The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any communicative materials, including sexually-oriented materials, that are protected by the First Amendment of the United States Constitution and the relevant provisions of the California State Constitution.
(L) The proposed parking standards are necessary in the interests of the public health, safety, and welfare to provide for an appropriate amount of off-street parking.
(M) The City Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (such as Penal Code Section 313 et seq.) The City Council further takes legislative notice of cases that recognize that protection of minors from sexually explicit materials is a compelling government interest including, but not limited to, Crawford v. Lungren (9th Cir., 1996) 96 F.3d 380, cert.denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075.
(N) In adopting these regulations, the City Council is mindful of legal principles relating to regulation of adult 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 adult businesses. The City Council has considered decisions of the United States Supreme Court regarding adverse secondary effects and the local regulation of adult businesses including, but not limited to: Young v. American Mini Theaters. Inc., 427 U.S. 50 (1976) (Reh. 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); Barnes v. Glenn Theater, 501 U.S. 560 (1991), and City of Erie v. Paps A.M. (2000) 529 U.S. 277 (2000 Daily Journal DAR 3255), United States Court of Appeals 9th Circuit decisions including, but not limited to: Topanga Press, et al. v. City of Los Angeles, 989 F.2d 1524 (1993); Kev. Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), pet. for cert. filed (1999); several California cases including, but not limited to: Tily B. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener, 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 (3rd Cir. 1993) 10 F.3d 123, International Eateries v. Broward County (11th Cir. 1991) 941 F.2d 1157, and Star Satellite v. City of Biloxi (5th Cir. 1986) 779 F.2d 1074.
(O) The city has conducted its own study of its land use districts and planning areas and has determined that the establishment of adult business in the M-3 zone designation is appropriate, subject to locational and distance requirements that promote the health, safety, and general welfare of the public. The city also evaluated the locational and distance regulations in this chapter for separating adult businesses from sensitive land uses, and other adult businesses, and determined the location and distance requirements are appropriate to promote the health, safety,+ and general welfare of the public.
(P) The locational requirements do not unreasonably restrict the establishment or operation of constitutionally protected speech in the city and a sufficient reasonable number of appropriate locations for adult businesses are provided.
(Q) The City Council recognizes that the standards and regulations in this chapter do not preclude reasonable alternative avenues of communication. The City Council takes note of the proximity of at least 12 adult businesses within 30 minutes (drive time) of the city, and the presence of “Angels Gentlemen’s Club” at 1650 East Sixth Street in Corona, in determining that the proposed standards do not preclude reasonable alternative avenues of communication.
(R) The City Council recognizes that a sufficient number of appropriate locations for establishing an adult business in the city are provided considering the city's predominant residential character (more than 60% of land within Corona is zoned for residential land use), the fact that there is already one adult business sited in the city (“Angels Gentlemen’s Club”) and the fact that no formal requests to establish an adult business have been received by planning department staff.
(S) Finally, the City Council also takes note of the proliferation of adult material on the Internet and its availability as an alternative avenue of communication. The City Council also considers and relies on published decisions examining the proliferation of communications on the Internet. Reno v. American Civil Liberties Union (1997) 521 U.S. 844 (the principal channel through which many Americans now transmit and receive sexually explicit communication is the Internet); see also: Anheuser-Busch v. Schmoke, 101 F.3d 325, 329 (4th. Cir. 1996)(rejecting First Amendment challenge to Baltimore ordinance restricting alcohol advertisements on billboards and acknowledging that the Internet is an available channel of communication); U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); and U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996)(cert denied 519 U.S. 820). The emergence of the Internet provides a virtually unlimited additional source of adult oriented sexual material available to persons without regard to geographic boundaries. An adult business no longer needs to be actually physically located within a city to be available to the community.
(Ord. 2708 § 4, 2004.)
An "adult business" is any business where employees or patrons expose specified anatomical areas or engage in specified sexual activities, or any business which offers to its patrons services or entertainment characterized by an emphasis on matter depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas. “Adult businesses” do not include bona fide medical establishments operated by properly licensed and registered medical personnel with appropriate medical credentials for the treatment of patients. In determining whether a use is an adult business, only conduct or activities which constitute a regular and substantial course of conduct or a use which has a majority of its floor area, stock-in-trade or revenue derived from material characterized by an emphasis on matters depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas shall be considered. Isolated instances of conduct or activities described in this section as characterizing an adult business shall not be considered except where such activities, taken together, constitute a regular and substantial course of conduct. “Adult businesses” include, but are not limited to, the following:
(A) Adult Arcade. An "adult arcade" means any place to which the public is permitted or invited wherein coin- operated or slug-operated, or electronically, electrically or mechanically controlled still or motion picture machines, projections or other image-producing devices are maintained to show images to five or fewer persons per machine at any one time, and where the images so displayed are distinguished or characterized by the depicting or describing of specified sexual activities or specified anatomical areas.
(B) Adult Bookstore, Novelty Store, Video/DVD Store. "Adult bookstore, novelty store, video/dvd store," is an establishment which has as a substantial portion of its stock-in-trade, a majority of its floor area or revenue derived from and offering for sale for any form of consideration, any one or more of the following:
(1) Books, magazines, periodicals or other printed matter, photographs, films, motion pictures, video cassettes, slides or other visual representations which are characterized by an emphasis upon the depiction or description of "specified anatomical areas";
(2) Instruments, devices or paraphernalia which are designed for use in connection with specified sexual activities; or
(3) Goods which are replicas of, or which simulate, specified anatomical areas, or goods which are designed to be placed on or in specified anatomical areas, or to be used in conjunction with specified sexual activities to cause sexual excitement.
A commercial establishment may have other principal business purposes that do not involve the offering for sale or rental of material depicting or describing "specified sexual activities" or "specified anatomical areas" and still be categorized as an adult bookstore, adult novelty store or adult/video/dvd store. Such other business purposes will not serve to exempt such commercial establishments from being categorized as an adult bookstore, adult novelty store or adult/video/dvd store so long as one of its principal business purposes is the offering for sale or rental for consideration the specified materials which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.
(C) Adult Cabaret. An "adult cabaret" is a bar, nightclub or similar establishment which features dancers, strippers or similar entertainers who expose specified anatomical areas of their bodies.
(D) Adult Motel. An "adult motel" means a hotel, motel or similar commercial establishment which:
(1) Offer accommodations to the public for any form of consideration; provides patrons with closed circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and has a sign visible from the public right of way which advertises the availability of this adult type of photographic reproductions, videos or films; or
(2) Offers a sleeping room for rent for a period of time that is less than ten hours; or
(3) Allows a tenant or occupant of a sleeping room to subrent the room for a period of time that is less than ten hours.
(E) Adult Motion Picture Theater. An "adult motion picture theater" means a commercial establishment where, for any form of consideration, films, motion pictures, video cassettes, slides or similar photographic reproductions are regularly shown which are characterized by the depictions or description of specified sexual activities or specified anatomical areas.
(F) Adult Tanning Salon. An "adult tanning salon" or "parlor" means a business establishment where patrons receive tanning services in groups of two or more and where patrons or employees of the establishment expose specified anatomical areas. Adult tanning salon or parlor also includes a business establishment where a patron and an employee of the establishment are nude or expose specified anatomical areas. An adult tanning salon or parlor also includes a business establishment where the employees thereof are nude or expose specified anatomical areas.
(G) Adult Theater. An "adult theater" is any place, building, enclosure, theater, concert hall, auditorium or structure, partially or entirely used for live performances or presentations, which place, building, enclosure, theater, concert hall, auditorium or structure is used for presenting matter characterized by an emphasis on depicting, exposing, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein. Such place shall also include an adult theater wherein persons are regularly featured appearing in a state of nudity or giving live performances which are characterized by the exposure of specified sexual activities or by specified anatomical areas.
(H) Employee. "Employee" means a person who performs any service on the premises of an adult business on a full- time, part-time or contract basis, whether or not the person is denominated as an employee, independent contractor, agent or otherwise and whether or not said person is paid a salary, wage or other compensation by the operator of the adult business. Employee does not include a person exclusively on the premises to conduct repair or maintenance for the premises or equipment on the premises or for the delivery of goods to the premises.
(I) Nude Model Studio. A "nude model studio" means any place where a person who appears in a state of nudity or displays specified anatomical areas is provided to be conversed with or be observed, sketched, drawn, painted, sculptured, photographed or similarly depicted by other persons, for any form of consideration. Nude model studio shall not include any classroom of any school licensed under state law to provide art education, while such classroom is being used in a manner consistent with such state license.
(J) Sex Supermarket/Sex Mini-Mall. A "sex supermarket/sex mini-mall" means the establishment or operation of more than one type of adult business or use as defined in this title within the same building.
(K) Sexual Encounter Center. "Sexual encounter center" means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration:
(1) Physical contact in the form of wrestling or tumbling between persons of the opposite sex; or
(2) Activities between male and female persons and/or persons of the same sex when one or more of the persons is in a state of nudity or is semi-nude.
(L) Sexually Oriented Business. A "sexually oriented business" is any business where employees or patrons expose specified anatomical areas or engage in or simulate specified sexual activities, or any business which offers to its patrons services or entertainment characterized by an emphasis on matter depicting, exposing, describing, discussing or relating to specified sexual activities or specified anatomical areas.
(Ord. 2708 § 4, 2004.)
In addition to the terms defined in § 17.41.020, the following words and phrases shall have the meaning set forth below:
(A) Appeal. Wherever reference to an appeal being filed or available to be filed, such right of appeal shall also include the right to appeal administrative determinations concerning the interpretation of this chapter made by the city manager/designee to the planning commission and City Council.
(B) Establishment. An "establishment" means and includes any of the following:
(1) The opening or commencement of any adult business as a new business;
(2) The conversion of an existing business, whether or not an adult business, to any adult business;
(3) The addition of any adult business to any other existing adult business; or to another existing non-adult business, with or without expansion of floor area;
(4) The relocation of any adult business; or
(5) The expansion or enlargement of the premises by 10% or more of the existing floor area.
(C) Nudity or a State of Nudity. "Nudity" or a "state of nudity" means the showing of the human male or female genitals, buttocks, pubic area, vulva, anus, anal cleft or the female breast with less than a fully opaque covering of any part of the areola.
(D) Private Viewing Area. "Private viewing area" means an area or areas in an adult business designed to accommodate no more than five or less patrons or customers for purposes of viewing or watching a performance, picture, show, film, videotape, slide, movie or other presentation. No private viewing areas shall be established, maintained or authorized, and there shall be no doors, curtains, stalls or other enclosures creating a private viewing area.
(E) School. "School" means any public or private educational institution which is run by the state or a subdivision thereof or which is licensed by the state to offer pre-school, elementary or secondary academic instruction -- including kindergartens, elementary schools, middle or junior high schools, and high schools.
(F) Semi-Nude. "Semi-nude" means the showing of the male genitals or female breast below a horizontal line across the top of the areola at its highest point or the showing of a substantial portion of the male or female buttocks. This definition shall not include any portion of the cleavage of the human female breast, exhibited by a dress, blouse, skirt, leotard, bathing suit or other wearing apparel provided the areola is not exposed in whole or in part
(G) Specified Criminal Act. A "specified criminal act" also means "specified criminal acts" and includes sexual crimes against children; sexual abuse; rape; or crimes connected with another adult business including, but not limited to, the distribution of obscenity; violations involving the distribution, display or sale of material harmful to minors; prostitution; or pandering. Specified criminal acts shall exclude those acts which are authorized or required to be kept confidential pursuant to Welfare and Institutions Code Sections 600-900.
(Ord. 2708 § 4, 2004.)
The following words and phrases when used in this title shall have the meaning set forth below:
(A) Specified Anatomical Areas. "Specified anatomical areas" include any of the following human anatomical areas:
(1) Less than completely and opaquely covered genitals, pubic regions, buttocks, anuses or female breasts below a point immediately above the top of the areola; or
(2) Human male genitals in a discernibly turgid state, even if completely and opaquely covered.
(B) Specified Sexual Activities. "Specified sexual activities" include all of the following:
(1) The fondling or other erotic touching of the following human anatomical areas: genitals, pubic regions, buttocks, anuses or female breasts;
(2) Human sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation or sodomy;
(3) Human masturbation, actual or simulated;
(4) The actual or simulated infliction of pain by one human upon another, or by an individual upon himself or herself, for the purpose of the sexual gratification or release of either individual, as a result of flagellation, beating, striking or touching of an erogenous zone, including without limitation, the thigh, genitals, buttock, pubic region or, if such person is a female, a breast;
(5) Sexual intercourse, actual or simulated, between a human being and an animal; or
(6) Excretory functions as part of or in connection with any of the activities set forth in subsections (1) through (5), above.
(Ord. 2708 § 4, 2004.)
In order to operate an adult business within this city, the applicant or proprietor of the business must obtain the license required by Chapter 5.19 of this code and any other license required by this code and an adult use planning permit as required herein. It shall be unlawful and a misdemeanor, subject to punishment in accordance with § 1.08.025 of this code, for an owner, operator, manager or employee to operate an adult business without processing an adult use planning permit--including an interim adult use planning permit required by this chapter and any license required by Chapter 5.19 of this code. All applicants for such a permit, in addition to any application or documents required to be filed pursuant to the provisions of this title, shall file a written, signed, and verified application on a form provided by the planning director evidencing the following:
(A) The name and permanent address of the applicant;
(B) The name and business address of the applicant. If the applicant is a corporation, the applicant shall provide the name of the state of incorporation, the name shall be exactly as set forth in its chapters of incorporation and the applicant shall show the name and address of each of the officers, directors, and controlling stockholders owning at least 50% of the stock of the corporation and/or each officer, director, and controlling stockholder with day-to-day management of the business. If the applicant is a partnership, the application shall show the name and address of each of the partners, including limited partners with at least a 50% ownership in the business or having day-to-day management responsibilities in the business;
(C) Location and address of the proposed adult business;
(D) Legal description of the subject property;
(E) A detailed description of the manner of providing proposed entertainment, including type of entertainment and the number of persons engaged in the entertainment;
(F) Proposed hours of operation;
(G) A floor plan showing where the specific entertainment uses are proposed to be conducted within the building;
(H) A site plan;
(I) The name or names of the person or persons having responsibility for the management or supervision of the applicant's business and of any entertainment;
(J) Statement of the nature and character of the applicant's business, if any, to be carried on in conjunction with such entertainment.
(K) A signed and notarized authorization and waiver authorizing the chief of police, the Corona Police Department, or any law enforcement body or authorized law enforcement contractor to verify all of the information on the application.
(L) A statement in writing, signed and dated by the applicant, that he or she certifies under penalty of perjury that all information contained in the application is true and correct.
(M) Within two business days of the receipt of the application, the planning director, or his or her designee, shall determine whether it is complete and contains all information required by this section. If the application is incomplete, the planning director shall deny the application and immediately inform the applicant in writing of the items needed to complete the application.
(N) Notwithstanding the fact that an application filed hereunder may be a "public record" under Government Code Section 6250 et seq., certain portions of such application contain information vital to the effective administration and enforcement of the licensing and/or permit scheme established herein which is personal, private, confidential or the disclosure of which could expose the applicant to a risk of harm. Such information includes, but is not limited to, the applicant's residence address and telephone number, the applicant's date of birth and/or age, the applicant's driver's license and/or Social Security Number, and/or personal financial data. The City Council in adopting the application and licensing and/or permit system set forth herein has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentiality or security interests are protected. The City Clerk shall cause to be obliterated from any copy of a completed license application made available to any member of the public, the information set forth above.
(Ord. 2708 § 4, 2004.)
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