Chapter 5.26 ADULT BUSINESS LICENSES

This chapter is intended to regulate adult businesses in the city of Mill Creek consistent with state and federal statutory law and constitutional requirements. It is not the purpose of this chapter to discriminate or allow any other improper or unlawful action to prohibit or restrict adult businesses.

5.26.020 Definitions.

Except as otherwise expressly declared or clearly apparent from the context in which used, the following definitions shall be applied in construing the provisions of this chapter:

A. “Adult business” as defined in MCMC 14.01.030(A).

B. “Adult entertainment” means any display, presentation, exhibition, performance or dance of any type conducted in a business establishment and involving a person who (a) is unclothed or in such attire, costume, or clothing as to expose to view any specified anatomical area; or (b) touches, caresses or fondles any specified anatomical area of themselves or another person; or (c) permits the touching, caressing or fondling of any of their own specified anatomical areas.

C. “Adult stock in trade” means all books, pictures or other printed materials, products, goods or equipment, pre-recorded video tapes or video discs, or any other material distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas and which is available for rental, purchase, viewing, or use by patrons of the establishment.

D. “Business day” means the normal business hours of the adult business within a 24-hour period. The maximum business day is the time period set forth in MCMC 5.26.210.

E. “Business establishment” means any business that excludes any person by virtue of age from all or any part of the premises and which engages in adult business on any portion of the premises.

F. “Employee” means any and all persons, including managers, waitpersons, entertainers and independent contractors, who work for or work at or render any services directly related to the operation of an adult business.

G. “Entertainer” means any person who on any occasion provides adult entertainment within an adult business, whether or not a fee is charged or accepted for such entertainment, and whether or not the entertainer is paid.

H. “Manager” means any person who manages, directs, administers, or is in charge of the affairs or conduct of any portion of an adult business.

I. “Operator” means any person operating, conducting or maintaining an adult business.

J. “Person” means any individual, partnership, corporation, trust, incorporated or unincorporated association, marital community, joint venture, governmental entity, or other entity or group of persons however organized.

K. “Public place” means any area generally visible or open to the general public and includes streets, sidewalks, bridges, alleys, plazas, parks, driveways, parking lots, and automobiles whether moving or not.

L. “Specified anatomical areas” as defined in MCMC 14.01.030(S).

M. “Specified sexual activities” as defined in MCMC 14.01.030(S).

N. “Waitperson” means any person who on any occasion greets or waits on patrons or serves food or drink within an adult business.

5.26.030 Application of other provisions.

The licenses required by this chapter are subject to the general provisions of the Mill Creek Municipal Code set forth in Chapter 5.04 MCMC, Business Licenses, as now or hereafter amended. In the event of a conflict between the provisions of Chapter 5.04 MCMC and this chapter in their application to an adult business, the provisions of this chapter shall control.

5.26.040 License required – Adult business.

A. It shall be unlawful for any person to operate or maintain an adult business in the city unless the owner or operator thereof has obtained from the city manager a license to do so. Such license shall be designated an “adult business license” and shall be issued on an annual basis.

B. It is unlawful for any entertainer, waitperson, employee or manager knowingly to perform any service or entertainment directly related to the operation of an unlicensed adult business.

C. It is unlawful for any owner, operator, manager, or employee of a licensed adult business knowingly to permit any violation of this chapter.

5.26.050 License required – Manager, waitperson or entertainer.

A. It shall be unlawful for any person on any occasion to work or perform as an entertainer, waitperson or manager at an adult business without having first obtained from the city manager a license to do so. Such license shall be designated an “adult entertainer’s license,” an “adult waitperson’s license,” or an “adult business manager’s license,” respectively, and shall be issued on an annual basis.

B. A person performing the function of entertainer, waitperson or manager shall have a separate license for each function.

5.26.060 License – Posting and display.

A. Every adult entertainer shall post his or her license in his or her work area so it is readily available for inspection by city authorities responsible for enforcement of this chapter.

B. Every person licensed under this chapter as an adult business, waitperson or manager shall post such license in a conspicuous place and manner on the premises of the adult business.

5.26.070 License – Unlawful to advertise without license.

It is unlawful to advertise the services of any adult business or adult entertainer that is not licensed according to the provisions of this chapter.

5.26.080 License – Fees and requirements.

A. The fees for each license and renewal of any license required by this chapter shall be set forth in Chapter 3.42 MCMC.

B. All persons required to obtain or renew licenses under this chapter shall obtain or renew the same and pay all fees required on or before December 31st of the prior license year. Any person who fails to obtain or renew and pay the license fees by December 31st of the prior license year shall, in addition to any other penalties provided in this chapter or the Mill Creek Municipal Code, be assessed an amount equal to 50 percent of the license fee for such year as a penalty for such late application or payment; provided, that this penalty shall not apply to an application submitted by any person who was not previously licensed under this chapter.

C. No license shall be issued or renewed except upon written application made to the city manager in accordance with this chapter. A nonrefundable application fee in an amount equal to the license fee for the license sought shall accompany the application. If the license is granted, the application fee shall be credited to payment of the first annual license fee.

D. If the applicant is a partnership, the application must be made and signed by one of the general partners; if a corporation, by one of the officers thereof. In addition, if the applicant is a non-Washington (i.e., foreign) corporation, partnership or nonresident individual, it shall be signed by the resident agent or local manager of the foreign corporation, partnership or individual.

E. Neither the filing of an original or renewal application for license, nor the payment of any application or renewal fee shall authorize a person to engage in or conduct an adult business until such license has been granted or renewed.

5.26.090 License – Term.

All licenses issued pursuant to this chapter shall be valid until December 31st of the year for which they are issued, and all renewals thereafter shall be for a period of one calendar year commencing January 1st of the year for which the license is issued and expiring December 31st of the same year.

5.26.100 License – Procedure for renewing.

All licenses to be issued pursuant to this chapter shall be renewed by following the same procedure as required for an original application.

5.26.110 Application for license – Adult business.

A. All applications for an adult business license shall be submitted in the name of the person(s) proposing to own and/or operate such adult business, signed by the person(s) specified in MCMC 5.26.080, and notarized or certified as true under penalty of perjury. All applications shall be submitted on forms supplied by the city manager, and shall contain the following information:

1. The name, residence address, residence telephone number, date and place of birth, and Social Security or tax identification number of each applicant.

2. The business name, street and mailing address and telephone number of the adult business premises.

3. The names, residence addresses, residence telephone numbers, Social Security numbers and dates of birth of all general partners, corporate officers and directors of the applicant.

4. Addresses of the applicant and the general partners, corporate officers and directors of the applicant for the five years immediately prior to the date of application.

5. A detailed description and operational plan of the adult business proposed to be conducted by the applicant(s), including but not limited to hours of operation, location, names and addresses of managers, interior furnishings and layout of stage(s), and number and type of employees.

6. A description of the adult business history of the applicant(s), including the issuing jurisdiction and identification number of any prior adult business license, including whether, in previously operating an adult business in this or another city, county or state, such person has had an adult business license revoked or suspended, the reason therefor, and the activity or occupation subjected to such action, suspension or revocation.

7. A description of the business, occupation, or employment of the applicant(s) and the general partners, corporate officers and directors of the applicant for the three years immediately preceding the date of application.

8. Copies of any ownership documents, sale or purchase documents, or lease documents pertaining to the proposed adult business premises sufficient to allow the city to identify everyone with a property interest in the premises.

9. Authorization for the city, its agents and employees to seek any other relevant information or to confirm any statements set forth in the application.

B. An application that does not provide all of the information or documents required by this section is incomplete and shall not be processed until all required information is provided.

5.26.120 Application for licenses – Manager, waitperson or entertainer.

A. All applications for an adult business manager’s license, adult waitperson’s license or adult entertainer’s license shall be signed by the applicant and notarized or certified as true under penalty of perjury. All applications shall be submitted on forms supplied by the city manager, and shall contain the following information:

1. The applicant’s name, residence address, residence telephone number, date and place of birth, Social Security number and any stage names, nicknames or aliases used.

2. The name and address of each adult business at which the applicant intends to work as a manager, waitperson or entertainer, and the issuing jurisdiction and identification number of all other similar licenses held by the applicant within the three years immediately preceding.

3. Documentation verifying that the applicant has attained the age of 18 years. Any of the following shall be accepted as documentation of age:

a. A valid motor vehicle operator’s license issued by any state bearing the applicant’s photograph and date of birth.

b. A valid identification card issued by any state bearing the applicant’s photograph and date of birth.

c. A valid official passport issued by the United States of America.

d. A valid immigration card issued by the United States of America.

e. Any other valid picture identification bearing the applicant’s date of birth issued by a state or federal governmental entity.

4. Two two-inch by two-inch black and white photographs of the 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.

5. A legible photocopy of a valid food and beverage service worker’s permit, as prescribed by the Washington State Board of Health, issued pursuant to Chapter 69.06 RCW, if otherwise required.

B. An application that does not provide all of the information or documents required by this section is incomplete and shall not be processed until all required information is provided.

5.26.130 Applicant investigation – Adult business.

Upon filing of an application for an adult business license, the city manager shall forward copies of the application to the chief of police, the planning director, the building official and the fire chief; and:

A. Within 60 days of the date of the application for an adult business license, the chief of police shall investigate the statements set forth in the application and report to the city manager whether the information received by the chief of police confirms the information in the application.

B. Within 60 days of the date of an application for an adult business license, the planning director shall inspect the proposed premises of the adult business and report to the city manager whether the location of the proposed adult business complies with the regulations of MCMC Titles 16, 17 and 18.

C. Within 60 days of the date of the application for an adult business license, the building official shall inspect the proposed premises of the adult business and report to the city manager whether the premises complies with the regulations of MCMC Title 15.

D. Within 60 days of the date of the application for an adult business license, the fire chief shall examine the proposed establishment and report to the city manager whether the establishment complies with the regulations of the fire district and MCMC Title 15.

5.26.140 Applicant investigation – Manager, waitperson or entertainer.

Upon filing of an application for an adult entertainer’s license, adult waitperson’s license or adult business manager’s license, the city manager shall forward copies of the application to the chief of police. Within three working days of the date of the application, the chief of police shall investigate the statements set forth in the application and report to the city manager whether the information received by the chief of police confirms the information in the application.

5.26.150 Application – Denial or approval – Notice.

A. The city manager shall, within seven days after completion of the investigation of an adult business license, but in no event no more than 67 days from the date of receipt of the application, issue an adult business license if the city manager finds:

1. That the adult business for which a license is required will be conducted in a building, structure and location which complies with the requirements and meets the standards of the applicable health, zoning, building, fire and safety laws of the city, as well as the requirements of this chapter;

2. That the applicant, or any of its general partners, corporate officers or directors, employees, agents, or managers has not made any false, misleading or fraudulent statement of material fact in the application for any license, or in any report or record required to be filed with the city; and

3. That the applicant and all or any of its general partners, corporate officers or directors, employees, agents, or managers of the applicant have attained the age of 18 years.

B. The city manager shall, within three working days after the receipt of an application for an adult business manager’s license, adult waitperson’s license or an adult entertainer’s license, issue the applicable license unless the city manager finds:

1. That the applicant has made any false, misleading or fraudulent statement of material fact in the application for any license, or in any report or record required to be filed with the city; or

2. That the applicant has not attained the age of 18 years.

C. When a license is issued or denied by the city manager it shall be mailed to the applicant, postage prepaid, to the address shown on the license application.

5.26.160 Procedure for appealing a license denial.

A. When the city manager refuses to grant a license, he shall notify the applicant in writing of the same, describing the reasons therefor, and shall inform the applicant of his right to appeal to the examiner within 10 days of the date of the written notice by filing a written notice of appeal with the city clerk 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 city manager shall forward the administrative record of the licensing decision to the city clerk.

C. When an applicant has timely appealed the city manager’s licensing decision, the examiner shall review the administrative record at a hearing. Written notice of the date and time of the scheduled hearing will be given to the applicant by the city clerk by mailing the same, postage prepaid, to the applicant at the address shown on the license application.

D. The applicant and city manager shall be given an opportunity to argue the merits of the appeal before the examiner. Oral argument by each party shall be limited to the administrative record before the examiner. New evidence shall not be presented by the parties or accepted by the examiner.

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

G. Either party may seek review of a final decision of the examiner as provided in MCMC 1.20.010. (Ord. 2010-718 § 7 (Exh. G))

5.26.170 Employee conduct – Standards and prohibitions.

The following standards of conduct upon the premises of any adult business shall be adhered to by employees of any adult business:

A. All adult entertainment shall occur upon a stage at least 18 inches above the immediate floor level and be removed at least six feet from the nearest patron.

B. No employee or entertainer shall be unclothed or in less than opaque and complete attire, costume or clothing so as to expose to view any portion of a specified anatomical area, whether or not the specified anatomical area is painted, decorated or covered with less than opaque material, except upon a stage at least 18 inches above the immediate floor level and removed at least six feet from the nearest patron.

C. Except as provided in subsections A and B of this section, no employee or entertainer shall perform acts of or acts which simulate:

1. Adult entertainment;

2. Specified sexual activities; or

3. The touching, caressing or fondling of any specified anatomical area.

D. No employee or entertainer mingling with the patrons shall be unclothed or in less than opaque and complete attire, costume or clothing as described in subsection B of this section.

E. No employee or entertainer shall knowingly permit any person upon the premises to engage in a specified sexual activity or touch, caress or fondle any specified anatomical area of any other person.

F. No employee or entertainer shall touch, caress or fondle any specified anatomical area of any other person.

G. No employee or entertainer shall wear or use any device or covering exposed to view which simulates any portion of a specified anatomical area.

H. No employee or entertainer shall use artificial devices or inanimate objects to depict any specified sexual activity.

I. No entertainer shall be visible from any public place while providing adult entertainment on the premises of such adult business.

J. No entertainer shall solicit, demand or receive any payment or gratuity from any patron for any act prohibited by this chapter.

K. No entertainer shall solicit or collect any payment or gratuity directly from any patron nor shall any patron pay or give any gratuity directly to any entertainer. Nothing in this section prohibits payment of a gratuity or payment to a manager on behalf of the entertainer.

L. No waitperson shall, while acting as a waitperson, provide adult entertainment or be unclothed or in less than opaque and complete attire, costume or clothing so as to expose to view any specified anatomical area.

5.26.180 Certain conduct prohibited.

A. It is unlawful for any patron of an adult business to enter upon any stage during any time an entertainer is performing.

B. It is unlawful for any patron of an adult business to hand, pay, or give any gratuity or payment directly to an entertainer.

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

D. Except as permitted in MCMC 5.26.170, no person shall touch, caress or fondle any specified anatomical area while on the premises of an adult business.

5.26.190 Premises requirements.

The following are required at the premises of any adult business:

A. Neither the performance nor any photograph, drawing, sketch or other pictorial or graphic representation displaying any portion of any specified anatomical area may be visible outside of the adult business premises.

B. 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. Where adult entertainment is provided, a sign not less than two feet by two feet, with bold face print not less than 24 point, shall be conspicuously displayed in the area of the premises open to and used by the patrons, visible from the main entry, and shall read as follows:

THIS ADULT BUSINESS IS REGULATED BY THE CITY OF MILL CREEK. ENTERTAINERS ARE:

1. Not permitted to engage in any type of sexual conduct.

2. Not permitted to be unclothed or in such less than opaque and complete attire, costume or clothing so as to expose to view any portion of the breast below the top of the areola, any portion of the pubic region, buttocks, genitals or vulva and/or anus except upon a stage at least 18 inches from the immediate floor level and removed at least six feet from the nearest patron.

3. Not permitted to solicit or collect any payment or gratuity directly from any patron. Any gratuity shall be paid to the manager on behalf of an entertainer.

D. No alcoholic beverages may be served at any adult business required to be licensed under this chapter. Any premises which has received a license to sell alcoholic beverages from the Washington State Liquor Control Board shall be ineligible for an adult business license under this chapter while such license to sell alcoholic beverages is in effect.

5.26.200 Manager required on premises – Duties.

A. A licensed adult business manager shall be on duty at an adult business during all times the adult business is open for business. The name of the manager on duty shall be prominently posted during business hours.

B. Upon request, the manager shall provide a roster of all adult entertainers and waitpersons on duty for or working during a specified business day.

C. It shall be the responsibility of the manager to verify that any person who provides adult entertainment or acts as a waitperson within the adult business premises (a) possesses a current and valid adult entertainer’s or adult waitperson’s license posted in the manner required by this chapter, and (b) is not performing more than one such function during a business day.

5.26.210 Hours of operation.

It is unlawful for any adult business to remain open to the public, or to conduct or operate business, whether for adult entertainment or otherwise, between the hours of 2:00 a.m. and 10:00 a.m. Nothing in this section shall prohibit employees from being on the premises of the adult business outside the specified hours to perform preparatory work, cleaning, accounting or other functions; provided, that no person who is not an employee of the adult business may be on the premises at such times.

5.26.220 Age restrictions.

A. It is unlawful for any person under the age of 18 years to be in or upon any premises for which an adult business license is required.

B. It is unlawful for any owner, operator, manager, or other person in charge of an adult business to knowingly permit or allow any person under the age of 18 years to be in or on the premises of such adult business.

5.26.230 Exemptions.

A. This chapter shall not be construed to prohibit or regulate:

1. Plays, operas, musicals, or other dramatic works that are not obscene.

2. Classes, seminars and lectures held for scientific or educational purposes that are not obscene.

3. Exhibitions, performances, expressions, dances or modeling for artistic purposes that are not obscene.

4. Athletic games or contests traditionally conducted so as to expose to view any portion of the male breast below the top of the areola (e.g., boxing or wrestling matches).

B. For purposes of this section, an activity is obscene if:

1. Taken as a whole by an average person applying contemporary community standards the activity appeals to a prurient interest in sex; and

2. The activity depicts patently offensive representations, as measured against community standards, 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 violent or destructive sexual acts, including but not limited to human or animal mutilation, dismemberment, rape or torture; and

3. The activity taken as a whole lacks serious literary, artistic, political or scientific value.

5.26.240 Penalties.

A. Any violation of this chapter shall be a gross misdemeanor, and shall be subject to a fine not to exceed $5,000, or to imprisonment for a term not to exceed one year, or both such fine and imprisonment. Each day or portion thereof such violation continues or occurs shall be considered an additional and separate offense.

B. Any person violating any of the provisions of this chapter shall also be subject to license suspension or revocation as set forth in this chapter.

5.26.250 Suspension or revocation of license – Procedures – Appeal.

A. Whenever the city manager has found or determined that any violation of this chapter has occurred, the city manager shall issue a notice of violation and suspension or revocation (“notice”) to the licensee.

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 below.

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. A licensee may appeal the notice to the examiner. 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 city clerk a written request for a hearing, specifying the reason(s) for the appeal.

2. The city manager 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 MCMC 5.26.160 shall be followed.

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

F. Either party may seek review of a final decision of the examiner as provided in MCMC 1.20.010. (Ord. 2010-718 § 7 (Exh. G))

5.26.260 Suspension or revocation of license – Duration.

A. The city manager 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 city manager 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 city manager 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 city manager 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 city.

E. Application for a new license may be made following the expiration of the applicable revocation period.