Chapter 10.44 REGULATION OF SEXUALLY

Based on public testimony presented to it by law enforcement officers and other members of the public, and on other evidence, information, documents and materials submitted to and reviewed by it, the Board of County Commissioners makes the following findings of fact:

A. Sexually oriented businesses require special supervision in order to protect and preserve the health, safety, and welfare of the patrons of such businesses as well as the citizens of the communities where they locate.

B. The Board of County Commissioners finds that sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution and sexual liaisons of a casual nature.

C. Permitting and/or licensing is a legitimate and reasonable means of accountability to ensure that operations of sexually oriented businesses comply with reasonable regulations and to ensure that operators do not knowingly allow their establishments to be used as places for illegal sexual activity or solicitation.

D. In order to further protect and preserve the health, safety, and welfare of the county, the Board of County Commissioners has established by separate ordinance certain land use regulations related to the location and operation of sexually oriented businesses.

E. It is necessary to license entertainers in the adult entertainment industry to prevent the exploitation of minors, to ensure that such entertainer is an adult, and to ensure that such entertainers have not assumed a false name, which would make regulation of the entertainer difficult or impossible.

F. It is necessary to have a licensed manager on the premises of establishments offering adult entertainment at such times as such establishments are offering adult entertainment so that there will at all times be an individual responsible for the overall operation of the establishment, including the actions of patrons, entertainers and other employees.

G. The license fees required hereinafter are necessary as nominal fees imposed by regulatory measures designed to help defray the substantial expenses incurred by the county in regulating the adult entertainment industry. [Ord. 94-225, § 1, 12-27-94.]

10.44.020 Purpose and intent.

It is the purpose of this chapter to regulate sexually oriented businesses and related activities to promote health, safety, morals, and general welfare of the citizens of the county. 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. Similarly, it is not the intent nor effect of this chapter to restrict or deny access by adults to sexually oriented materials protected by the state or federal Constitutions, or to deny access by the distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent nor effect of this chapter to condone or legitimize the distribution of obscene materials. [Ord. 94-225, § 2, 12-27-94.]

10.44.030 Definitions.

For purposes of this chapter the following definitions shall apply:

“Adult arcade” means an enterprise where, for any form of consideration, one or more still or motion projectors, slide projectors, or similar machines, or other image producing machines, for viewing by five or fewer persons each, are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas.

“Adult bookstore,” “adult novelty store,” or “adult video store” means a commercial establishment which (1) holds as 50 percent or more of its stock-in-trade, or (2) receives 50 percent or more of its gross revenues in the form of the sale or rental for any form of consideration from the following: 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 specified sexual activities or specified anatomical areas.

“Adult cabaret” means a nightclub, bar, restaurant, or similar commercial enterprise, whether or not alcoholic beverages are served, which features: (1) persons who appear nude or semi-nude; or (2) live performances which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas; or (3) 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.

“Adult entertainment enterprise” means any commercial or retail enterprise which (1) offers entertainment or stock-in-trade, including rooms, readily available for purchase, rental, viewing, or use by patrons of the establishment; and (2) is represented to be or is primarily in the business of offering services or products which are distinguished or characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas. “Adult entertainment enterprises” shall include, but not be limited to, the following: adult arcade, adult bookstore, adult novelty store, adult video store, adult cabaret, adult mini theater, adult motel, adult motion picture theater, adult panoram establishment, adult theater, live adult entertainment enterprise, massage parlor, nude or semi-nude model studio, and sexual encounter center.

“Adult mini theater” means an enclosed building with a capacity of less than 50 persons, a portion of an enclosed building with a capacity of less than 50 persons, or an outdoor theater with a capacity of less than 50 persons used for presenting motion picture films, video cassettes, cable television, or any other such visual media, distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined in this chapter for observation by patrons therein.

“Adult motel” means a hotel, motel, or similar enterprise which:

1. Offers accommodations to the public for any form of consideration and provides patrons with (a) closed-circuit television transmissions, films, motion pictures, video cassettes, slides, or other photographic reproductions which are distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas, and (b) which has a sign visible from the public right-of-way which advertises the availability of this adult type of photographic reproductions; or

2. Offers sleeping rooms for rent on an hourly basis; or

3. Allows tenant(s) or occupant(s) of a sleeping room to sub-rent on an hourly basis.

“Adult motion picture theater” means an enclosed building with a capacity of 50 or more persons, a portion of an enclosed building with a capacity of 50 or more persons, or an outdoor theater with a capacity of 50 or more persons used for presenting motion picture films, video cassettes, cable television, or any other such visual media distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined therein for observation by patrons therein.

“Adult panoram establishment” means any building or portion of a building which contains device(s) which for payment of a fee, membership fee, or other charge, is used to exhibit or display a picture, view, or other graphic display distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined therein.

“Adult theater” means a concert hall, theater, auditorium, or similar commercial enterprise which, for any form of consideration, regularly features persons who appear nude or semi-nude, or live performances which are distinguished or characterized by emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical areas as defined in this chapter for observation by patrons therein.

“Auditor” means the Cowlitz County Auditor, or designee.

“Board” means the Board of Commissioners of Cowlitz County.

“Board of Adjustment” means the Board of Adjustment of Cowlitz County.

“Building Official” means the Codes Administration Division Manager, or his designee, of Cowlitz County’s Department of Building and Planning.

“City” means the incorporated cities in Cowlitz County, Washington.

“County” means Cowlitz County, Washington.

“Department” means the Department of Building and Planning, Cowlitz County.

“Director” means the Director of the Cowlitz County Department of Building and Planning or designee.

“Employee” means any and all persons, including managers, entertainers, and independent contractors who work in, render services to, and have direct interaction with clientele of the adult entertainment enterprise.

“Entertainer” means any person who provides sexually oriented entertainment in an adult cabaret whether or not an employee of the operator and whether or not a fee is charged or accepted for such entertainment.

“Establishment” means and includes any of the following:

1. The opening or commencement of any adult entertainment enterprise as a new business; or

2. The conversion of an existing business, whether or not an adult entertainment enterprise, to any adult entertainment enterprise as defined in this chapter; or

3. The addition of any of the adult entertainment enterprises defined herein to any other existing adult entertainment enterprise; or

4. The relocation of any such adult entertainment enterprise.

“Live adult entertainment enterprise” means any building or portion of a building which contains any exhibition or dance wherein any employee or entertainer is unclothed or in such attire, costume, or clothing so as to expose to view any portion of the female breast below the areola, or male or female genitals, vulva, anus, and/or buttocks, or any portion of the pubic hair and which exhibition or dance is for the benefit of member or members of the adult public, or advertised for the use or benefit of a member of the adult public, held, conducted, operated, or maintained for profit, direct or indirect.

“Manager” means any person who manages, directs, administers, or is in charge of, the affairs and/or the conduct of an adult cabaret, adult theater, live adult entertainment enterprise or sexual encounter center.

“Massage parlor” means an establishment where, for any form of consideration, massage, alcohol rub, fomentation, electric or magnetic treatment, or similar treatment or manipulation of the human body is administered, unless such treatment or manipulation is administered by a medical practitioner, chiropractor, acupuncturist, physical therapist, or a licensed massage practitioner operating pursuant to Chapter 18.108 RCW. This definition does not include an athletic club, health club, school, gymnasium, reducing salon, spa, or similar establishment where massage or similar manipulation of the human body is offered as an incidental or accessory service.

“Nude or semi-nude model studio” means any building or portion of a building where person(s) appear nude or semi-nude or displays specified anatomical areas, for money or any form of consideration to be observed, sketched, drawn, painted, sculptured, photographed, or similarly depicted by other persons.

“Nudity” means the showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the areolae, or the depiction of covered male genitals in a discernibly turgid state.

“Obscene” means an act or expression which:

1. The average person, applying contemporary community standards, would find when considered as a whole, appeals to the prurient interest; and

2. Explicitly depicts or describes patently offensive representations or descriptions of:

a. Ultimate sexual acts, normal or perverted, actual or simulated, or

b. Masturbation, fellatio, cunnilingus, bestiality, excretory functions, or lewd exhibition of the genitals or genital area, or

c. Violent or destructive sexual acts including but not limited to human or animal mutilation, dismemberment, rape or torture; and

3. When considered as a whole, and in the context in which it is used, lacks serious literary, artistic, political or scientific value.

“Operator” means and includes the owner, permit holder, custodian, manager, operator, or person in charge of any permitted or licensed premises.

“Permitted or licensed premises” means any premises that requires a license and/or permit and that is classified as an adult entertainment enterprise.

“Permittee and/or licensee” means a person in whose name a permit and/or license to operate an adult entertainment enterprise has been issued, as well as the individual listed as an applicant on the application for a permit and/or license.

“Person” means any individual, firm, joint venture, copartnership, association, social club, fraternal organization, corporation, estate, trust, business trust, receiver or any other group or combination acting as a unit.

“Semi-nude” means a state of dress in which clothing covers no more than the genitals, pubic region, and areolae of the female breast, as well as portions of the body covered by supporting straps or devices.

“Sexual encounter center” means a business or commercial enterprise that, as one of its primary business purposes, offers for any form of consideration specified sexual 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 semi-nude.

“Sexually oriented entertainment” means a live performance at an adult cabaret which is characterized by the performer’s exposure of specified anatomical areas.

“Specified anatomical areas” means and includes any of the following:

1. Less than completely and opaquely covered human genitals, pubic region, buttocks, anus, vulva, or female breasts below a point immediately above the top of areolae; or

2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered.

“Specified criminal acts” means any conviction or acts which are sexual crimes against children, sexual abuse, rape or crimes connected with another adult entertainment enterprise, including but not limited to, distribution of obscenity or material harmful to minors, prostitution or pandering.

“Specified sexual activities” means and includes any of the following:

1. The fondling or other intentional touching of human genitals, pubic region, buttocks, anus, vulva, or female breasts; or

2. Sex acts, actual or simulated including sexual intercourse, oral copulation, or sodomy; or

3. Human masturbation, actual or simulated; or

4. Human genitals in a state of sexual stimulation, arousal, or tumescence; or

5. Excretory functions as part of or in connection with any of the activities set forth in this subsection.

“Transfer of ownership or control of an adult entertainment enterprise” means and includes any of the following:

1. The sale, lease or sublease of the business; or

2. The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange, or similar means; or

3. The establishment of a trust, gift or other similar legal devise which transfers the 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. [Ord. 94-225, § 3, 12-27-94.]

10.44.040 Adult entertainment enterprise permit required.

A. No adult entertainment enterprise shall be permitted to operate without a valid adult entertainment enterprise permit, issued by the county for the particular type of business. It shall be a violation of this chapter if a person operates or causes to be operated an adult entertainment enterprise without the permit.

B. The Director of the Department of Building and Planning, or his/her designee, is responsible for granting, denying, revoking, reviewing, suspending, and canceling adult entertainment enterprise permits and licenses. The Director or designee is also responsible for ascertaining whether a proposed adult entertainment enterprise for which a permit and/or license is being applied for complies with all requirements enumerated herein and all other applicable zoning laws and/or regulations now in effect or as amended or enacted subsequent to the effective date of this chapter.

C. An application for a permit shall be made on a form provided by the county. Any person desiring to operate an adult entertainment enterprise shall file with the County’s Department of Building and Planning an original and two copies of a sworn permit application on the application form supplied by the county.

D. The completed application shall contain the following information and shall be accompanied by the following documents:

1. If the applicant is:

a. An individual, the individual shall state his/her legal name and any aliases or previous married names and submit satisfactory proof that he/she is 18 years of age or older.

b. A partnership, the partnership shall state its complete name, the names of all partners, including their date of birth, 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 its incorporation, evidence that the corporation is in good standing under the laws of Washington, the names and capacity of all officers, directors and principal stockholders, the name of the registered corporate agent, and the address of the registered office for service of process.

d. As a part of the application process, each officer, director, or principal stockholder, as defined above, shall provide the Director of Building and Planning with an affidavit attesting to their identity and relationship to the corporation. Principal stockholder shall mean those persons who own 10 percent or greater interest in the adult entertainment enterprise.

2. Whether the applicant or the individuals listed pursuant to subsection (D)(1)(b) and (c) of this section within a two-year period immediately preceding the date of the application has been convicted of a specified criminal act and, if so, the specified criminal act involved, the date of conviction and the place of conviction.

3. Whether the applicant or any of the other individuals listed pursuant to this section has had a previous permit or license under this chapter or other similar ordinances from another city or county denied, suspended, or revoked, including the name and location of the adult entertainment enterprise for which the permit or license was denied, suspended, or revoked, as well as the date of the denial, suspension, or revocation.

4. Whether the applicant or any other individual listed pursuant to this section holds any other permits and/or licenses under this chapter or other similar adult entertainment enterprise ordinance from another city or county and, if so, the names and locations of such other permitted businesses.

5. The single classification of permit for which the applicant is filing.

6. The location of the proposed adult entertainment enterprise, including a legal description of the property, street address, and telephone number(s), if any.

7. The applicant’s mailing address and residential address.

8. Two two-inch by two-inch black and white photographs of the applicant, including any corporate applicant, taken within six months of the date of the application, showing only the full face of the applicant. The photographs shall be provided at the applicant’s expense. The license, when issued shall have affixed to it one such photograph of the applicant.

9. The applicant or corporate applicant’s driver’s license number, Social Security Number, and or his/her state or federally issued tax identification number.

10. Each application shall be accompanied by a complete set of fingerprints of each person required to be a party to the application, including all corporate applicants as defined above, utilizing fingerprint forms as prescribed by the County Sheriff.

11. In the case of an adult cabaret, a sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business. The sketch or diagram need not be professionally prepared, but it must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.

12. Applicants for a permit and/or license under this chapter shall have a continuing duty to promptly supplement application information required in the event that the information changes in any way from what is stated on the application. The failure to comply with the continuing duty within 30 days from the date of such change by supplementing the application on file with the Director of Building and Planning or his/her designee, shall constitute grounds for suspension of a permit and/or license.

13. In the event the Director of Building and Planning or his/her designee determines or learns at any time that the applicant has improperly completed the application for a proposed adult entertainment enterprise permit or license, he/she shall promptly notify the applicant of such fact and allow the applicant 10 days to properly 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 properly complete the application.)

14. The applicant must be qualified according to the provisions of this section, and the premises must be inspected and found to be in compliance with health, fire, and building codes of the county.

15. The applicant shall be required to pay a nonrefundable application fee of $100.00 at the time of filing an application under this section. Note: This is a processing fee. License fees shall also be required in the event the application is approved.

16. The fact that a person possesses other types of state, city, or county permits and/or licenses does not exempt him/her from the requirement of obtaining an adult entertainment enterprise permit.

17. The application form for licenses and permits issued under this chapter shall contain a provision providing that under penalty of perjury the applicant verifies that the information contained therein is true to the best of their knowledge. [Ord. 94-225, § 4, 12-27-94.]

10.44.050 Investigation and application.

A. Upon receipt of an application properly filed with the County Department of Building and Planning and upon payment of the nonrefundable application fee, the Director or his/her designee shall immediately stamp the application as received and shall immediately thereafter send photocopies of the application to other county departments or other agencies responsible for enforcement of health, fire and building codes and laws. Each department or agency shall promptly conduct an investigation of the applicant’s application and the proposed adult entertainment enterprise. The investigation shall be completed within 30 working days of receipt of the application by the Director or his/her designee. At the conclusion of its investigation, each department or agency shall indicate on the photocopy of the application its recommendation as to approval or disapproval of the application, date it, sign it, and in the event it recommends disapproval, state the specific reasons therefor citing applicable laws or regulations.

B. A department or agency shall recommend disapproval of an application if it finds that the proposed adult entertainment enterprise will be in violation of any provision of any statute, code, ordinance, regulation or other law in effect in the county. After its indication of approval or disapproval, each department or agency shall immediately return the photocopy of the application to the Director or his/her designee. [Ord. 94-225, § 5, 12-27-94.]

10.44.060 Issuance of permit.

A. The Director or his/her designee shall grant or deny an application for a permit within 45 days from the date of its proper filing. Upon the expiration of the forty-fifth day, unless the applicant requests and is granted a reasonable extension of time, the applicant shall be permitted to begin operating the business for which the permit is sought, unless and until the county or its designee notifies the applicant of a denial of the application and states the reason(s) for that denial.

B. Grant of Application for Permit.

1. The Director or his/her designee shall grant the application unless one or more of the criteria set forth in subsection C of this section is present.

2. The permit, if granted, shall state on its face the name of the person or persons to whom it is granted, the expiration date, and the address of the adult entertainment enterprise. The permit shall be posted in a conspicuous place at or near the entrance to the adult entertainment enterprise so that it can be easily read at any time.

C. Denial of Application for Permit. The Director of Building and Planning or his/her designee shall deny the application for any of the following reasons:

1. An applicant is under 18 years of age.

2. An applicant is overdue on his/her payment to the county of taxes, fees, fines, or penalties assessed against him/her or imposed upon his/her in relation to an adult entertainment enterprise.

3. An applicant has failed to provide information required by this section or permit application for the issuance of the permit or has falsely answered a question or request for information on the application form.

4. The applicant has failed to comply with any provision or requirement of this chapter. [Ord. 94-225, § 6, 12-27-94.]

10.44.070 Licenses required for adult entertainment enterprises – Fees.

A. No adult entertainment enterprise shall be operated or maintained in the county unless the owner or operator has obtained a permit as set forth above, and the applicable licenses from the Director of Building and Planning. For adult cabarets the required license shall be the adult cabaret license set forth in subsection B of this section. It is unlawful for any entertainer, employee, or operator to knowingly work in or about or knowingly perform any service directly related to the operation of an unlicensed adult cabaret business.

B. The annual fee for an adult cabaret business license shall be $500.00. This amount shall be used for the cost of administration of this chapter.

C. The annual license fee for all other adult entertainment enterprises described in CCC 10.44.030 shall be $125.00. This amount shall be used for the cost of administration of this chapter.

D. The above-referenced licenses expire annually on December 31st and must be renewed by January 1st.

E. In cases where the license becomes effective on a date other than January 1st, the license fee shall be prorated on a quarterly basis. The cost thereof shall be computed by prorating the annual fee on a quarterly basis rounded back to the beginning of the quarter in which the license is to be issued.

F. The applicant must be 18 years of age or older. [Ord. 94-225, § 7, 12-27-94.]

10.44.080 License for managers and entertainers of adult cabarets required – Fee.

A. No person shall work as a manager or entertainer at an adult cabaret without having first obtained an entertainer’s or manager’s license from the Director. Each such applicant shall not be required to obtain an adult entertainment enterprise permit, but shall complete an application containing the information identified in CCC 10.44.040(D) and the same procedures shall be followed as set forth in CCC 10.44.050 and 10.44.060. A nonrefundable processing fee of $25.00 shall accompany the application.

B. The annual fee for such a license shall be $100.00. This amount shall be used for the cost of administration of this chapter.

C. The license expires annually on December 31st and must be renewed by January 1st.

D. In cases where the license becomes effective on a date other than January 1st, the license fee shall be prorated on a quarterly basis. The cost thereof shall be computed by prorating the annual fee on a quarterly basis rounded back to the beginning of the quarter in which the license is to be issued.

E. The applicant must be 18 years of age or older.

F. No person shall hold a manager’s or entertainer’s license for a period of two years from the date of conviction for a specified criminal act. Any such conviction shall effect the immediate revocation of any manager’s or entertainer’s license then held. [Ord. 94-225, § 8, 12-27-94.]

10.44.090 Licenses for models.

No person shall work as a model at a nude or semi-nude model studio as defined herein without having first obtained a model license from the County Director of Building and Planning.

A. Each such applicant shall complete an application containing the information identified in CCC 10.44.040(D) and the same procedures shall be followed as set forth in CCC 10.44.050 and 10.44.060. A nonrefundable processing fee of $25.00 shall accompany the application.

B. The annual fee for such a license shall be $100.00. This amount shall be used for the cost of administration of this chapter.

C. This license expires annually on December 31st and must be renewed by January 1st.

E. The applicant must be 18 years of age or older. [Ord. 94-225, § 9, 12-27-94.]

10.44.100 Due date for license fees.

All licenses required by the chapter must be issued and the applicable fees paid to the Director at least 14 calendar days before commencing work at an adult entertainment enterprise. The permit required by CCC 10.44.040 must only be renewed based on changed circumstances as set forth in CCC 10.44.040(D)(11). [Ord. 94-225, § 10, 12-27-94.]

10.44.110 Manager on premises.

A. A licensed manager shall be on duty at an adult cabaret business premises at all times live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities are provided.

B. The licensed manager on duty shall not be an entertainer.

C. It shall be the responsibility of the manager to verify that any entertainer who works or appears within the premises possesses a current and valid entertainer’s license posted in the manner required by this chapter. [Ord. 94-225, § 11, 12-27-94.]

10.44.120 License nontransferable.

No license or permit issued pursuant to this chapter shall be transferable. [Ord. 94-225, § 12, 12-27-94.]

10.44.130 License – Posting and display.

A. Every entertainer shall post his or her license in his or her work area so that it is readily available for public inspection.

B. Every person, corporation, partnership, or association licensed under this chapter shall display its license in a prominent place within the establishment. In the case of adult cabarets, the name of the manager on duty shall be prominently posted during business hours. [Ord. 94-225, § 13, 12-27-94.]

10.44.140 Specifications – Adult cabarets.

A. Separation of Sexually Oriented Adult Entertainment Performance Area. The portion of the adult cabaret premises in which sexually oriented adult entertainment is performed shall be a stage or platform at least 24 inches in elevation above the level of the patron seating areas, and shall be separated by a distance of at least six feet from all areas of the premises to which patrons have access. A continuous railing at least three feet in height and located at least six feet from all points of the sexually oriented adult entertainment performance area shall separate the performance area and the patron areas.

B. Lighting. Sufficient lighting shall be provided and equally distributed in and about the parts of the premises which are open to and used by patrons so that all objects are plainly visible at all times, and so that on any part of the premises which are open to and used by patrons a program, menu, or list printed in eight-point type will be readable.

C. Submittal of Plans. Building plans showing conformance with the requirements of this section shall be included with any application for an adult cabaret business license. [Ord. 94-225, § 14, 12-27-94.]

10.44.150 Standards of conduct and operation applicable to adult cabarets.

A. Standards for Patrons, Employees and Entertainers. The following standards of conduct must be adhered to by patrons, entertainers and/or employees of adult cabarets at all times live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities are provided.

1. No employee or entertainer shall appear nude or semi-nude on any part of the premises open to view of members of the public, except on or in the entertainment performance area described in CCC 10.44.140(A).

2. No patron or customer shall go into or upon the adult entertainment performance area described in CCC 10.44.140(A) while sexually oriented entertainment is being performed.

3. No member of the public or employee or entertainer shall allow, encourage, or knowingly permit any person upon the premises to touch, caress, or fondle the breasts, buttocks, anus, pubic area, or genitals of any other person.

4. No member of the public or employee or entertainer shall allow, encourage, or permit physical contact between an employee or entertainer and any member of the public, which contact is intended to arouse or excite sexual desires.

5. No employee or entertainer shall perform acts of or acts which simulate:

a. Sexual intercourse, masturbation, bestiality, sodomy, oral copulation, flagellation, or any sexual acts which are prohibited by law; or

b. The touching, caressing, or fondling of the breasts, buttocks, pubic area, or genitals.

6. No employee or entertainer shall use artificial devices or inanimate objects to depict any of the prohibited activities described in this subsection.

7. No entertainer of an adult cabaret shall be visible from any public place outside the premises during the actual or apparent hours of his or her employment or performance on the premises.

8. No entertainer employed or otherwise working at an adult cabaret shall solicit, demand, accept, or receive any gratuity or other payment from a patron, customer, or member of the public.

9. It is unlawful for any entertainer, manager, or waitperson to perform more than one such function at an adult cabaret on the same business day.

10. No customer or patron of an adult cabaret shall give or otherwise provide an entertainer with a gratuity or other payment.

11. When not performing, entertainers are prohibited from being present in areas of the establishment that are open to the general public, except bathrooms.

12. Signs in both English and Spanish of sufficient size to be readable at 20 feet shall be conspicuously displayed in the public area of the establishment stating the following:

THIS CABARET IS REGULATED BY COWLITZ COUNTY. ENTERTAINERS ARE:

(A) Not permitted to engage in any type of sexual conduct;

(B) Not permitted to appear nude or semi-nude, except on stage;

(D) Not permitted to solicit, demand, accept, or receive any gratuity or other payment from a patron.

B. Standards for Owner or Operator of Adult Cabarets. At any adult cabaret where live performances are characterized by the exposure of specified anatomical areas or by specified sexual activities are provided the following are required:

1. Admission must be restricted to persons of the age of 18 years or more; and

2. Sufficient lighting shall be provided in or about the parts of the premises which are open to and used by the public so that all objects are plainly visible at all times. [Ord. 94-225, § 15, 12-27-94.]

10.44.160 Regulations applicable to adult entertainment enterprises.

A. Adult entertainment enterprises having facilities for customers’ viewing of depictions of human nudity and/or sexual conduct of any nature, including depictions of specified sexual activities, shall comply with the following regulations:

1. Construction/Maintenance.

a. All viewing booths shall be constructed or reconstructed so that the interior of the viewing booth is observable by persons in the aisles or other open areas of the establishment such that the lower 36 inches of the doorway is open to public view.

b. All such areas shall be maintained in a clean and sanitary condition at all times.

2. Signs. Signs shall be conspicuously posted on the premises advising customers using viewing booths that:

a. Masturbation in such booths is prohibited and unlawful.

b. It is unlawful for more than one customer to occupy a viewing booth at any time.

3. Unlawful Conduct. The following conduct or activity is unlawful:

a. Masturbation in viewing booths.

b. Two or more customers in a viewing booth at the same time.

c. For the owner or manager to knowingly allow the above conduct.

B. No person under the age of 18 shall be allowed to enter or remain upon the premises of any adult entertainment enterprise. [Ord. 94-225, § 16, 12-27-94.]

10.44.170 Regulations applicable to video stores not qualifying as adult entertainment enterprises.

Video stores that sell or otherwise distribute films, motion pictures, video cassettes, slides, or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas, and less than 50 percent of their stock-in-trade or revenues comes from the rental or sale of such items shall be subject to the following regulations:

A. All such items as are described above shall be physically segregated and closed off from other portions of the store such that these items are not visible and/or accessible from other portions of the store.

B. No advertising for such items shall be posted or otherwise visible, except where such items are authorized for display.

C. Signs readable at a distance of 20 feet in both English and Spanish shall be posted at the entrance to the area where such items are displayed stating that persons under the age of 18 are not allowed access to the area where such items are displayed.

D. The manager or attendant shall take reasonable steps to monitor the area where such items are displayed to insure that persons under 18 years of age do not access the age-restricted area.

E. Rental or sale of obscene material (as defined by state law) or material harmful to minors (as defined by state law) to persons under 18 years of age is prohibited.

F. Employees of such video stores shall check identification of persons appearing to be 18 years or under to insure that such items are not rented or sold to persons under that age of 18. [Ord. 94-225, § 17, 12-27-94.]

10.44.180 Exemptions.

It is a defense to prosecution under this chapter that a person appearing in a state of nudity or semi-nudity did so in a modeling class operated by:

A. A proprietary school, licensed by the State of Washington; a college, junior college, or university supported entirely or partly by taxation; or

B. 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. The modeling of clothing or lingerie in a full-service restaurant where no consideration is charged, whether directly or indirectly, and specified anatomical areas are not exposed by the model. [Ord. 94-225, § 18, 12-27-94.]

10.44.190 License – Name of business and place of business.

No person granted a permit and/or license pursuant to this chapter shall operate an adult entertainment enterprise under a name not specified in his/her license, nor shall he/she conduct business under any designation or at a location not specified in his/her permit and/or license. [Ord. 94-225, § 19, 12-27-94.]

10.44.200 Inspections.

A. All books and records required to be kept pursuant to this chapter shall be open to inspection by the Cowlitz County Sheriff’s Office during the hours when the licensed premises is open for business upon two days’ written notice to the licensee. The purpose of such inspection shall be to determine if the books and records meet the requirements of this chapter.

B. The licensed premises shall be (as an implied condition of receiving a permit and/or license) open to inspection by the Sheriff’s office during the hours when the adult entertainment enterprise is open for business. The purpose of such inspection shall be to determine if the licensed premises is operated in accordance with the requirements of this chapter. It is expressly declared that unannounced inspections are necessary to insure compliance with this chapter. [Ord. 94-225, § 20, 12-27-94.]

10.44.210 Hours of operation.

It is unlawful for any adult entertainment enterprise, except adult motels, to be conducted, operated, or otherwise open to the public between the hours of 2:00 a.m. and 11:30 a.m. [Ord. 94-225, § 21, 12-27-94.]

10.44.220 Recordkeeping requirements.

A. Within 30 days following each calendar quarter, each adult entertainment enterprise licensee shall file with the Building and Planning Director a verified report showing the licensee’s gross receipts and amounts paid to entertainers, models, or escorts, if applicable, for the preceding calendar year.

B. Each adult entertainment enterprise licensee shall maintain and retain for a period of two years the names, addresses and ages of all persons employed or otherwise retained as entertainers and models by the licensee. [Ord. 94-225, § 22, 12-27-94.]

10.44.230 Procedure for appealing a license/permit denial.

A. When the Director refuses to grant a license or permit, he/she shall notify the applicant in writing of the same, describing the reasons therefor, and shall inform the applicant of his/her right to appeal to the Cowlitz County Board of Adjustment within 10 days of the date of the written notice by filing a written notice of appeal with the Director containing a statement of the specific reasons for the appeal and a statement of the relief requested.

B. Within 10 days of receiving a timely appeal, the Director shall forward the administrative record of the licensing decision to the Board of Adjustment.

C. When an applicant has made a timely appeal of the Director’s decision, the Board of Adjustment shall review the administrative record at the next regularly scheduled meeting for which proper notice can be given. Written notice of the date and time of the scheduled meeting will be given to the applicant by the Director by mailing the same, postage prepaid, to the applicant at the address shown on the license or permit application.

D. The applicant and Director, or his representative, shall be given an opportunity to argue the merits of the appeal before the Board of Adjustment. Oral argument by each party shall not exceed 20 minutes and shall be limited to the administrative record before the Board of Adjustment. New evidence shall not be presented by the parties or accepted by the Board of Adjustment.

E. The Board of Adjustment shall uphold the Director’s decision unless it finds the decision is not supported by substantial evidence in the administrative record. The applicant shall bear the burden of proof.

F. The Board of Adjustment shall issue a written decision within 10 days of hearing the appeal. The Board of Adjustment may uphold the Director’s decision and deny the permit, overrule the Director’s decision and grant the permit, or remand the matter to the Director for further review and action. The Director shall complete further action or review within 30 days of receiving the remand.

G. Appeal to the Board of Adjustment shall constitute final administrative review. [Ord. 94-225, § 23, 12-27-94.]

10.44.240 Suspension or revocation of license or permit procedures – Appeal.

A. Whenever the Prosecuting Attorney has found or determined that any violation of this chapter has occurred, he/she shall issue a notice of violation and suspension or revocation (“notice”) to the licensee or permit holder.

B. The notice shall include the following:

1. Name(s) of person(s) involved;

2. Description of the violation(s), including date and section of this chapter violated;

3. Description of the administrative action taken;

4. Rights of appeal as set forth above.

C. Service of the notice shall be either personally or by mailing a copy of the notice by certified mail, postage prepaid, return receipt requested, to the licensee at his or her last known address. Proof of personal service shall be made at the time of service by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time, date and the manner by which service was made.

D. If the licensee appeals the notice, the licensee shall be afforded a reasonable opportunity to be heard as to the violation and action taken, subject to the following:

1. The licensee shall have 10 days from personal service of notice, or 15 days from date of mailing of the notice, to file with the Director a written request for hearing specifying the reason(s) for the appeal.

2. The Prosecuting Attorney shall have the burden to prove, by a preponderance of the evidence, that the identified violation(s) occurred.

3. In all other respects, the procedures set forth in CCC 10.44.230 shall be followed.

E. The suspension or revocation of a license by the Prosecuting Attorney shall be immediately effective unless a stay thereof is specifically requested in the written request for a hearing.

F. Either party may seek judicial review of a final decision of the Board of Adjustment as provided by law. [Ord. 94-225, § 24, 12-27-94.]

10.44.250 Suspension or revocation of license/permit – Duration.

A. The Prosecuting Attorney shall suspend any license required by this chapter for a period of 30 days upon the licensee’s first violation of this chapter.

B. The Prosecuting Attorney shall suspend any license required by this chapter for a period of 90 days upon the licensee’s second violation of this chapter.

C. The Prosecuting Attorney shall revoke any license required by this chapter for a period of one year upon the licensee’s third or any subsequent violation of this chapter.

D. Notwithstanding the other provisions of this chapter, the Prosecuting Attorney shall revoke or deny the renewal of any license required by this chapter for one year if the licensee has made any false or misleading statements or misrepresentations to the county.

E. Application for a new license may be made following the expiration of the applicable revocation period. [Ord. 94-225, § 25, 12-27-94.]

10.44.260 Applicability to currently operating businesses.

Any adult entertainment enterprise legally operating upon the effective date of this chapter shall be exempted from the permit and application requirements of CCC 10.44.040, 10.44.050 and 10.44.060 for the remainder of the year of enactment. [Ord. 94-225, § 27, 12-27-94.]

10.44.270 Limitation of liability.

None of the provisions of this chapter are intended to create a cause of action or provide the basis for a claim against the county, its officials, or employees for the performance or the failure to perform a duty or obligation running to a specific individual or specific individuals. Any duty or obligation created in this chapter is intended to be a general duty or obligation running in favor of the general public. [Ord. 94-225, § 28, 12-27-94.]

10.44.280 Revision of fees.

Any fee established under the terms of this chapter, including application processing fees, initial license or permit fees, and all renewal fees, shall be subject to revision from time to time by resolution duly adopted by the Board. [Ord. 94-225, § 29, 12-27-94.]

10.44.290 Penalties for violation.

It is a civil infraction for any person to violate this chapter or to assist in the violation of this chapter. Violations are subject to all the enforcement and remedial provisions of Chapter 2.06 CCC. This chapter shall be considered a “land use ordinance” for the purposes of Chapter 2.06 CCC. Any violation is a public nuisance which, in addition to any other remedies, may be abated by injunctive relief. Each day a violation exists is a separate violation. Payment of any penalty imposed for a violation does not relieve a person from the duty to comply with this chapter. [Ord. 94-225, § 30, 12-27-94.]

10.44.300 Effective date.

This chapter shall take effect immediately after enactment. [Ord. 94-225, § 31, 12-27-94.]

10.44.310 Severability.

If any portion of this chapter as now or hereafter amended, or its application to any person or circumstance is held invalid or unconstitutional, such adjudication shall not affect the validity of the chapter as a whole, or any section, provision, or part thereof not adjudged to be invalid or unconstitutional, and its application to other persons or circumstances shall not be affected. Any ordinance or regulation in conflict with this chapter is repealed. [Ord. 94-225, § 26, 12-27-94.]