Chapter 5.08
ADULT-ORIENTED BUSINESSES
Sections:
5.08.040 Public display of certain matter prohibited.
5.08.050 Conditional use permit.
5.08.070 Regulation of escort service.
* Prior legislation: Ords. 600 and 608.
5.08.010 Findings.
The city council makes the following findings regarding the establishment of adult-oriented businesses:
A. Certain uses of real property, variously described as adult bookstores, adult motion picture facilities, figure model studios, adult cabarets, adult motels, escort services and massage parlors, have serious objectionable characteristics which, if such uses were allowed to become concentrated in certain areas of the city, may have adverse effects upon the character of such areas and adjacent neighborhoods;
B. Permitting the concentration of such adult-oriented businesses in residential zones, or in zones adjacent to schools, churches or public recreational areas, or within close proximity of such uses, may expose minors to such facilities and this may adversely affect such minors due to their immaturity;
C. Special regulation of adult-oriented business uses is necessary to ensure that such uses do not become incompatible land uses and, further, will not contribute to the blighting or downgrading of zones in which they are permitted, therefore, adversely affecting property values and deterring or interfering with the development and operation of other businesses within the city;
D. There is a higher incidence of crime, especially crimes against the person, in areas in which adult-oriented businesses are permitted to cluster or become concentrated, and that such crimes and the incidence thereof increase in the late evening and night hours, requiring increased effort on the part of public safety personnel to police such activities, with resultant costs to the city. (Ord. 1042 § 2 (Att. C), 2017; Ord. 937 Att. 1, 2004)
5.08.020 Definitions.
For the purposes of this chapter, the following definitions shall apply, unless the context otherwise requires:
“Adult bookstore” means an establishment having a substantial or significant portion of its stock in trade, books, magazines and other periodicals which are distinguished or characterized by their emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical areas, as defined in this section, or an establishment with a segment or section devoted to the sale or display of such material.
“Adult business” means adult bookstore, adult motion picture facility, figure model studio, adult motel, adult cabaret, escort service or massage establishment.
“Adult cabaret” means an establishment which features topless-bottomless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers.
“Adult motels” mean any establishment designated as or having the characteristics of a hotel, motel, or other transient lodging facility which has or proposes to have as a feature or service offered to its customers the presentation or entertainment in the form of motion picture film, video tape, closed circuit television, or any other similar means or device which is substantially similar thereto and provided for the purpose of displaying, showing, or depicting specified anatomical areas, as defined in this section, for observation or viewing by persons who are customers of such establishments. This section shall apply whether charge is made or consideration exchanged for the use of rooms within such establishments for overnight accommodations or for short-term admission to view the material above described.
“Adult motion picture facility” means a facility used for presenting, whether by way of motion picture projection or television or video equipment, or peep show device, material distinguished or characterized by an emphasis on matter depicting, describing, or related to specified sexual activities or specified anatomical areas for observation by patrons therein, whether in one or more auditoriums, drive-in theaters, booths or rooms within such facility.
Crime of Moral Turpitude. A “crime of moral turpitude” is defined as a crime which infringes upon the moral sentiment of the community, as distinguished from acts prohibited by statute or other law.
“Escort” means any person who, for a fee, commission, hire, reward or profit, accompanies other persons to or about social affairs, entertainments or places of amusement or consorts with others about any public place or within any private quarters.
“Escort service” means any business, agency or person who, for a fee, commission, hire, reward or profit, furnishes or offers to furnish names of persons, or who introduces, furnishes or arranges for persons, who may accompany clients or other persons to or about social affairs, entertainments or places of amusement, or who may consort with others about any public place or within any private quarters.
1. Exceptions. The provisions of this section shall not apply to businesses, agencies or persons that provide escort services for older persons as defined in California Welfare and Institutions Code Section 9406, when such services are provided as part of a social welfare and health program.
“Figure model studio” means any premises where there is conducted the business of furnishing, providing or procuring figure models who pose for the purpose of being observed, conversed with, or viewed by any person or of being sketched, painted, drawn, sculptured, photographed, or otherwise similarly depicted in the nude or seminude for persons who pay a fee, or other consideration, compensation, or gratuity, for the right or opportunity to converse with or so depict a figure model, or for admission to, or for permission to remain upon as a condition or remaining upon the premises. “Figure model studio” does not include, for purposes of this definition, any studio which is operated by any state college, junior or community college, public or private school, or any governmental agency wherein the person, firm, association, partnership or corporation so operating has met the requirements established by the state for the issuance or conferring of, and is in fact authorized thereunder to issue and confer, a diploma or honorary diploma.
“Massage” means any method of pressure on, or friction against, or stroking, rubbing, kneading, tapping, pounding, vibrating or stimulating, the external parts of the human body with the hands or other parts of the body, with or without the aid of any mechanical or electrical apparatus or appliance, or with or without the aid of such supplementary materials as rubbing alcohol, liniments, antiseptics, oils, powders, creams, lotions, ointments, or other similar preparations commonly used in the practice of massage. Massage does not include, for purposes of this definition, the methods of practice or the legitimate techniques of licensed physicians, chiropractors, physical therapists, or athletic trainers.
“Massage establishment” means any establishment having a fixed place of business where any individual, firm, association, partnership, corporation, or combination of individuals engages in, conducts, carries on or permits to be engaged in, conducted or carried on massage, baths, or health treatments involving massage or baths as the principal functions. Massage establishments shall not include, for the purposes of this chapter, nonsexual therapeutic massage establishments that are excluded from the definition for “massage” in this chapter and those establishments that are allowed under Article 2 (Zones, Allowable Land Uses, and Zoning Standards) of the Seaside zoning ordinance as “therapeutic massage” establishments.
“Permit” means either a permit to operate an escort service or to engage in the activities of an escort as required by this chapter.
“Specified anatomical areas” means:
1. Less than completely and opaquely covered:
a. Mature human genitals;
b. Mature human buttock; and
c. Mature human female breast below a point immediately above the top of the areola;
2. Human male genitals in a discernibly turgid state, even if completely or opaquely covered.
“Specified sexual activities” means:
1. Mature human genitals in a state of sexual stimulation or arousal;
2. Acts of human masturbation, sexual intercourse or sodomy;
3. Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast. (Ord. 988 § 3, 2010; Ord. 937 Att. 1, 2004)
5.08.030 Location.
A. Adult businesses, as defined in this chapter, shall only be permitted in the CH (heavy commercial) zone, and in that district shall only be permitted subject to first obtaining a conditional use permit. In all other zoning districts, adult businesses are a prohibited use.
B. Adult businesses shall not display or exhibit any material depicting human genitals or specified sexual activities in which the bookstores or motion picture theaters are located.
C. No adult businesses shall be located within a radius of one thousand feet from any of the following:
1. A public or private school attended primarily by minors;
2. A church or other house of worship;
3. A public park or recreational facility frequented or utilized by minors, including, but not limited to, public parks, beaches and recreation centers;
4. Any other adult business; and
5. Any property zoned for residential purposes.
D. Reference for computing these distances shall be the official zoning map of the city. (Ord. 937 Att. 1, 2004)
5.08.040 Public display of certain matter prohibited.
A. Materials offered for sale from newsracks shall not be displayed in a manner which exposes to public view photographs or illustrations of specified sexual activities or of poses which emphasize or direct the viewer’s attention to specified anatomical areas. The provisions of this subsection shall not apply to any newsrack placed in a location covered by Penal Code Section 313.1.
B. No person shall place, maintain, display or exhibit or permit the public to view in any manner any material which exposes to public view photographs or illustrations of specified sexual activities or of poses which emphasize or direct the viewer’s attention to specified anatomical areas. As used in this section, “exposes to public view” means exposes to the view of persons inside or outside the building in which the material is placed, maintained or displayed. (Ord. 937 Att. 1, 2004)
5.08.050 Conditional use permit.
Any adult-oriented business, the location of which is otherwise permitted under this chapter, shall be a use subject to first obtaining a conditional use permit, as defined in SMC Title 17, Article 5, subject to the following criteria:
A. That the proposed use will not be contrary to the public health, peace, safety, morals, comfort and general welfare of persons residing or working in the zone or district in which the use is proposed;
B. That the proposed use will not result in creating a less than desirable commercial atmosphere in zones or districts in which it is proposed; and
C. That the proposed use will not be contrary to any program of neighborhood conservation, nor interfere with any economic development program of urban renewal in the zones or districts in which it is proposed. (Ord. 1042 § 2 (Att. C), 2017; Ord. 937 Att. 1, 2004)
5.08.060 Nonconforming uses.
Any adult business in existence on the effective date of the ordinance codified in this chapter shall constitute a presently existing nonconforming use under this chapter. Such uses shall be subject to regulations contained in Chapter 17.50 SMC. (Ord. 937 Att. 1, 2004)
5.08.070 Regulation of escort service.
A. Escort Service.
1. Purpose and Intent. It is the purpose and intent of this section to provide for the orderly regulation of escort services in the city of Seaside by establishing certain minimum standards for the conduct of these types of businesses to protect the public health and welfare of the residents of the city.
2. Permit Required.
a. It is unlawful for any person, association, partnership, corporation or other entity to engage in, conduct, carry on, in or upon any premises within the city of Seaside, the business of an “escort service” as defined in this chapter, without a permit issued by the city of Seaside pursuant to the provisions of this section. The permit required shall be in addition to any other escort permits required by this provision and any business license required by this code.
b. Renewal. Permits issued under this section shall be valid for one year from the date of issuance, unless revoked sooner by the chief of police, and shall be renewed on an annual basis. The applicant shall pay a nonrefundable renewal fee in an amount established by resolution of the city council.
c. Nontransferability. Permits issued under this section shall be nontransferrable. Upon the transfer of ownership or control of an escort service, the escort service permit shall immediately be null and void, and a new permit must be applied for by the new owner.
d. Application for Escort Service Permit – Fee. Any person, association, corporation, partnership or other entity desiring to obtain a permit to operate an escort service shall make application to the police chief or his or her designated representative. Prior to submitting such application, a nonrefundable fee as established by resolution of the city council shall be paid to the city of Seaside to defray the cost of investigation required by this section. Application for a permit does not authorize operation of an escort service until such permit has been granted.
e. Application for Escort Service Permit – Contents. Each application for an escort service permit shall be submitted on a form furnished by the police department, furnishing the following information and including the accompanying data required:
i. The full, true name and any other names used by the applicant and all owners of the business, and their present addresses and telephone numbers;
ii. The previous addresses of the applicant and all owners of the business, for a period of five years immediately prior to the date of the application and the dates of residence of each;
iii. Acceptable written proof that the applicant and all owners of the business are at least eighteen years of age;
iv. The business, occupation or employment history of the applicant and all owners for the five years immediately preceding the date of application;
v. The criminal record, if any, of the applicant and all owners of the business, showing any and all convictions of the offenses listed in subsection (A)(4)(e) of this section;
vi. A detailed description of the proposed business, including the name of the business, the types of services to be provided, the hours of operation, whether the proposed business will operate as a home occupation, and whether other services, including, but not limited to, massage services, will be provided;
vii. The names and dates of birth of all persons currently employed or intended to be employed by the escort service, regardless of the nature of the employment and including independent contractors, along with the proposed or actual nature of the work performed or to be performed. “Employee” includes every owner, partner, manager, supervisor and worker, whether paid or not, who renders personal services of any nature in the operation of an escort service;
viii. Whether the applicant or any owners of the proposed establishment intend to personally act as escorts;
ix. Such other identification and information as the police department may require, such as fingerprints and/or photographs of the applicant, in order to discover the truth of the matters hereinbefore specified as required to be set forth in the application; and
x. A statement in writing by the applicant certifying under penalty of perjury that the foregoing information contained in the application is true and correct, and specifically authorizing the city, its agents and employees to seek information to verify the truth of the statements set forth in the application and the qualifications of the applicant for the permit. Applicant shall sign the application under penalty of perjury and in the presence of a Seaside police department staff member.
3. Applicant to Appear. The applicant, if an individual, or designated responsible managing officer, if a partnership or corporation, shall personally appear at the police department of the city of Seaside to present the application containing the aforementioned and described information, to produce proof that the application fee has been paid, and to sign the application under penalty of perjury.
4. Investigation – Issuance of Permit. Upon the receipt of the completed application for escort service permit, the police chief shall have sixty days to investigate the application and the background of the applicant and owners including, but not limited to, any past criminal convictions as provided by the Department of Justice or other legally authorized agency. Upon completion of the investigation, the police chief may grant the permit, or may deny the permit if he finds lack of compliance with any of the following:
a. The required fee has been paid;
b. The applicant conforms in all respects to the provisions of subsection (A)(2)(e) of this section;
c. The applicant has not made any false, misleading or fraudulent statements in the application;
d. The applicant has fully cooperated in the investigation of his or her application;
e. The applicant, if an individual, or any officers, directors, or shareholders of the corporation holding more than five percent of the stock, if the applicant is a corporation, or any of the partners, including limited partners, if the applicant is a partnership, have not within the last ten years been convicted in a court of competent jurisdiction of:
i. An offense involving conduct which requires registration under California Penal Code Section 290,
ii. Any offense in violation of Penal Code Section 266, 314, 315, 316, 318, 647(a), 647(b) or 647(h),
iii. An offense involving violation of California Health and Safety Code Sections 11351 through 11354, 11358 through 11363, and 11378 through 11380, or involving the sale of a controlled substance specified in Section 11054, 11055, 11056, 11057, or 11058 of the California Health and Safety Code,
iv. Abatement proceedings under the California Red Light Abatement Act (Penal Code Sections 11225 through 11325),
v. Any offense involving lewd conduct, the use of force or violence upon another person, fraud, deceit or moral turpitude,
vi. An attempt to commit or conspiracy to commit any of the above-mentioned offenses, or
vii. Conviction in any state of an offense which, if committed or attempted in this state, would have been punishable as one or more of the above-mentioned offenses;
f. The escort service business, as proposed by applicant, would comply with all applicable laws, including, but not limited to, zoning, fire and safety requirements and standards;
g. The applicant and all owners are at least eighteen years of age;
h. The applicant has not engaged in conduct which would constitute grounds for suspension or revocation under this section.
5. Temporary Permit. If relevant Department of Justice state summary criminal history information is not received within the sixty-day investigation period, the police chief is authorized to issue a temporary permit, valid for a ninety-day period. A final decision granting or denying a permit shall be made after receipt of such summary criminal history information. If the permit is granted, its effective date shall be the date of issuance of the temporary permit. If the permit is denied, the temporary permit shall expire upon notice of the denial.
6. Denial of Permit Application – Appeal. If the police chief, following investigation of the applicant, finds that the applicant does not fulfill the requirements set forth in this section, he shall deny the application and notify the applicant by first class mail of such denial. Any applicant who is denied a permit by the police chief may appeal such denial to the city manager, pursuant to the provisions of subsections (D)(5) through (8) of this section.
7. Escort Permit Required. Possession of a valid escort service permit does not authorize the holder thereof to personally perform work for which an escort permit is required.
B. Escorts.
1. Permit Required. It is unlawful for any person to engage in the business of acting or to act as an escort, as defined in this chapter, without a valid escort permit issued pursuant to the provisions set forth below. The escort permit shall be in addition to any escort service permit or any business license which may be required by law.
2. Application for Escort Permit – Fee. Any person desiring to obtain a permit to act as an escort shall make application to the police chief or his or her designated representative. Prior to submitting application, a nonrefundable fee as established by resolution of the city council shall be paid to the city of Seaside to defray the cost of investigation required by this section. Submission of an application for a permit does not authorize the applicant to act as an escort until a permit has been granted.
3. Application for Escort Permit – Contents. Each escort permit application shall be submitted on a form furnished by the police department and shall set forth the following information to include the accompanying data required:
a. The full, true name and any other names used by the applicant;
b. The present address and telephone number, as well as the previous addresses of the applicant for a period of five years immediately prior to the date of application and the dates of residence of each;
c. The name and address of the escort service and name of the owners of the escort service where applicant is to be employed, if any;
d. The birth certificate of applicant or other acceptable written proof that applicant is at least eighteen years of age;
e. The applicant’s height, weight, color of eyes and hair and date and place of birth;
f. Two photographs at least two by two inches taken within the last six months, together with a complete set of fingerprints taken by the chief of police or his or her agent;
g. The criminal record, if any, of applicant, showing any and all convictions of the offenses listed in subsection (A)(4)(e) of this section;
h. Such other identification and information as the police department may require in order to discover the truth of the matters hereinbefore specified as required to be set forth in the application; and
i. A statement in writing by the applicant signed under penalty of perjury that the foregoing information contained in the application is true and correct, and specifically authorizing the city, its agents and employees to seek information to verify the truth of the statements set forth in the application and the qualifications of the applicant for the permit. Applicant shall sign the application under penalty of perjury and in the presence of a Seaside police department staff member.
4. Applicant to Appear. The applicant for an escort permit shall personally appear at the police department of the city of Seaside to produce proof that the application fee as set by resolution of the city council has been paid, present the application containing the aforementioned and described information, and sign the application under penalty of perjury.
5. Investigation – Issuance of Permit. The police chief shall have sixty days to investigate the application and the background of the applicant. Upon completion of the investigation, the police chief may grant the permit, or may deny issuance of the permit if he or she finds lack of compliance with any of the following:
a. The required fee has been paid;
b. Applicant conforms in all respects to the provisions of subsection (B)(3) of this section;
c. Applicant has not made any false, misleading or fraudulent statements in the application;
d. Applicant has fully cooperated in the investigation of his or her application;
e. Applicant has not been convicted in a court of competent jurisdiction within the last ten years of the violations set forth in subsection (A)(4)(e) of this section;
f. Applicant is at least eighteen years of age;
g. Applicant has not engaged in conduct which would constitute grounds for suspension or revocation under this section.
6. Temporary Permit. If relevant Department of Justice state summary criminal history information is not received within the sixty-day investigation period, the police chief is authorized to issue a temporary escort permit, valid for a ninety-day period. A final decision granting or denying a permit shall be made after receipt of such summary criminal history information. If the permit is granted, its effective date shall be the date of issuance of the temporary permit. If the permit is denied, the temporary permit shall expire upon notice of the denial.
7. Escort Permit – Denial – Appeal. If the police chief, following investigation of the applicant, finds that the applicant does not fulfill the requirements set forth above, he or she shall deny the application and notify the applicant by first class mail of such denial. Any applicant who is denied a permit by the police chief may appeal such denial pursuant to the provisions of subsections (D)(5) through (8) of this section.
C. Prohibited Conduct. The following regulations shall apply to all escort services and escorts permitted under this section:
1. Age of Customer. It is unlawful for any escort service or escort to allow any person under the age of eighteen years to patronize an escort service as a customer or patron.
2. Nudity Prohibited. It is unlawful for any escort or client of an escort, or for any escort service to allow or permit its employees or clients, to be nude, semi-nude, dressed in lingerie or be other than fully clothed at all times when performing or utilizing escort services. Clothing shall be fully nontransparent and provide complete covering of the genitals, pubic area, buttocks and chest.
D. Failure to Comply.
1. Escort Service Responsibility. No permittee, owner, operator or manager of an escort service shall allow or permit any agent, employee, or other person under his or her control or supervision to perform any acts prohibited, or to fail to perform any acts required, by this section. Any such performance or failure to perform shall be subject to the provisions set forth below.
2. Violations – Misdemeanors. Violation of any provisions of this section shall constitute a misdemeanor and may be prosecuted criminally as set forth in Chapter 1.16 SMC, Penalties, Enforcement, Administrative and Legal Procedures.
3. Violations – Public Nuisance. Any escort service or escort operating contrary to the provisions of this section shall be, and the same is declared to be, unlawful and a public nuisance. The city attorney may, in addition to or in lieu of prosecuting a criminal action hereunder, commence an action for abatement, removal or enjoinment thereof, in the manner provided by law or as set forth in Chapter 1.16 SMC, Penalties, Enforcement, Administrative and Legal Procedures.
4. Violations – Suspension or Revocation of Permit.
a. Basis for Suspension or Revocation. The police chief may suspend or revoke an escort service permit or escort permit if he or she finds that a permittee has:
i. Knowingly made any false, misleading, or fraudulent statements in their permit application or application for renewal of same;
ii. Violated any provision of this section or any other ordinance, law or statute relating to or regulating permittee’s permitted activity; or
iii. Been convicted of or arrested for violation of any of the offenses listed in subsection (A)(4)(e) of this section.
The permittee shall be provided written notice by first class mail, postage prepaid, of such suspension or revocation.
5. Appeal to City Manager. The permittee may file an appeal with the city manager’s office within fifteen days of the date of the mailing of the notice of suspension or revocation. In the event an appeal is timely filed, the suspension or revocation shall not take effect until a final decision has been rendered by the city manager, or his or her designee. If no appeal is timely filed, the denial, suspension or revocation shall become effective upon expiration of the period for filing appeals.
6. Hearing Before City Manager. The city manager, or designee, shall schedule a hearing to be held within fifteen days after the filing of the notice of appeal. Notice of the date, time and place of the hearing shall be mailed, postage prepaid, at least ten days prior thereto to the appellant.
The city manager, or designee, shall conduct an informal hearing on the appeal. Formal rules regarding evidence and witnesses shall not apply. Appellant may have legal counsel and both parties shall have the right to present evidence and call witnesses; however, parties are encouraged to submit as much evidence as is possible by way of written briefs and declarations. In the event that the appellant fails to appear at the hearing, the existence of facts which constitute grounds for revocation or suspension of the permit shall be considered conclusively established. A copy of the decision of the hearing officer specifying the reasons for the decision shall be furnished to the appellant.
7. Appeal to the City Council. The permittee may file an appeal to the city council with the city clerk’s office within fifteen days of the date of the mailing of the decision of the city manager or designee. In the event an appeal is timely filed, the suspension or revocation shall not take effect until a final decision has been rendered by the city council. If no appeal is timely filed, the suspension or revocation shall become effective upon expiration of the period for filing appeals.
8. Hearing Before City Council. The city clerk shall schedule a hearing before the city council to be held within forty-five days of the filing of the notice of appeal. The city clerk shall provide notice of the hearing to the appellant, which shall include the date, time and place of the hearing. Once commenced, the hearing may be continued until it can be completed.
Formal rules regarding evidence and witnesses shall not apply at the hearing. Appellant may have legal counsel and both parties shall have the right to present evidence and call witnesses; however, parties are encouraged to submit as much evidence as is possible by way of written briefs and declarations. The city council shall have the authority to rule on admissibility of evidence.
The city council shall determine, after consideration of all evidence presented, whether a permit should be reinstated, suspended or revoked. The decision of the city council shall be final. (Ord. 1042 § 2 (Att. C), 2017; Ord. 937 Att. 1, 2004)
5.08.080 Amortization.
A. Within thirty-six months of the effective date of the ordinance codified in this chapter, all nonconforming adult-oriented businesses shall either be discontinued or made to conform to the provisions of this chapter, except that such nonconforming uses may be permitted to continue for a period not to exceed an additional twenty-four-month period upon the granting of a conditional use permit, upon application ninety days prior to the expiration of the present thirty-six-month use, pursuant to SMC Title 17.
B. In addition to the criteria contained in SMC Title 17 and SMC 5.08.050, the planning commission must find, in determining whether a conditional use permit should be issued, the following:
1. That the use, if continued, will not create a public nuisance, as defined in Sections 3479 and 3480 of the California Civil Code;
2. That the tenant, subtenant, lessee, sublessee, owner or other person, firm, partnership, association, or corporation who owns or operates such use is obligated under a lease or other binding rental agreement for the premises, which obligation was entered into before June 30, 1979, for a period exceeding five years; and
3. That the use represents an investment of money in leasehold and other improvements to such an extent that denial of such permit would result in undue financial hardship. (Ord. 1042 § 2 (Att. C), 2017; Ord. 937 Att. 1, 2004)