Chapter 5.60 ADULT ENTERTAINMENT

Chapter 5.60
ADULT ENTERTAINMENT

Sections:

5.60.005 Intent.

5.60.010 Definitions.

5.60.012 License prohibited to certain classes.

5.60.020 Adult entertainment establishment licenses.

5.60.030 Adult entertainment manager’s license.

5.60.040 Entertainer’s license.

5.60.050 Temporary license – Issuance.

5.60.060 License – Issuance.

5.60.070 Standards of conduct and operation.

5.60.080 Allowing minor in adult entertainment establishment.

5.60.090 Inspection.

5.60.100 Denial or revocation of license.

5.60.110 Appeal of license suspension or revocation.

5.60.120 Stay of license suspension or revocation.

5.60.130 Penalties.

5.60.140 Severability.

5.60.005 Intent.

This chapter is intended to protect the general public health, safety and welfare of the citizenry of the city through the regulation of the operations of adult entertainment establishments. The regulations set forth in this chapter are intended to prevent health and safety problems in and around entertainment establishments and to prevent dangerous and unlawful conduct in and around adult entertainment establishments. (Ord. 2013-7, 2013).

5.60.010 Definitions.

For the purpose of this chapter, the following words and phrases shall have the following meanings:

A. “Adult arcade/viewing booth” means any booth, cubicle, stall, or compartment that is designed, constructed, or used to hold or seat patrons and is used for presenting adult media for observation by patrons therein. This definition does not apply to a theater, movie house, playhouse, or a room or enclosure or portion thereof that contains more than 600 square feet. Those greater than 600 square feet shall be considered an adult motion picture theater.

B. “Adult business uses” means any uses on premises to which the adult public, patrons or members are invited or admitted or wherein any employee or other person provides, exhibits or performs adult entertainment or operates an adult commercial establishment, to or for a member of the adult public, a patron or a member, and specifically includes the list below:

1. Adult commercial establishments;

2. Adult motion picture theaters;

3. Adult arcades/viewing booths;

4. Adult cabarets, dance halls and dance studios.

C. “Adult cabaret/dance hall” or “dance studio” means a building or portion of a building regularly featuring dancing or other live adult entertainment if the dancing or entertainment provided is distinguished or characterized by an emphasis on the exhibiting of specified sexual activities or specified anatomical areas for observation by patrons therein.

D. “Adult commercial establishment” means any premises on or where adult media or sexually oriented toys or novelties are the majority of articles or items for sale and/or rent. Majority shall be determined to exist when 40 percent or more of the establishment’s gross public floor area is devoted to adult media or sexually oriented toys or novelties. Commercial establishments where the sale and/or rent of adult media or sexually oriented toys or novelties do not account for 40 percent or more of the establishment’s gross public floor area shall adhere to the standards set forth in TMC 5.60.070.

E. “Adult entertainment” means any exhibition, performance, or dance which is not obscene and:

1. Where such exhibition, performance, or dance involves a person who is unclothed or in such costume, attire, or clothing as to expose any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or wearing any device or covering exposed to view which simulates the appearance of any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, or human male genitals in a discernibly turgid state, even if completely and opaquely covered; or

2. Where such exhibition, performance or dance is distinguished or characterized by a predominant emphasis on the depiction, description, simulation or relation to the following specified sexual activities:

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

b. Acts of human masturbation, sexual intercourse or sodomy; or

c. Fondling or other erotic touching of human genitals, pubic region, buttocks or female breasts; or

3. Which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the activity on the premises. This includes, but is not limited to, any such exhibition, performance or dance performed for, arranged with, or engaged in with fewer than all members of the public on the premises at that time, and which is commonly referred to as table dancing, couch dancing, lap dancing, private dancing and straddle dancing;

4. This term shall not be construed to include:

a. Plays, operas, musicals, or other dramatic works; or

b. Classes, seminars and lectures which are held for serious scientific or educational purposes.

F. “Adult entertainment establishment” means any premises to which the adult public, patrons or members are invited or admitted and wherein any employee or other person provides, exhibits or performs adult entertainment to or for a member of the adult public, a patron or a member. The term includes: adult arcades/viewing booths; adult cabarets, dance halls and dance studios; and adult motion picture theaters.

G. “Adult media” means magazines, books, videotapes, movies, slides, CD-ROMs or other devices used to record computer images, or other media that are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified anatomical areas or specified sexual activities.

H. “Adult motion picture theater” means an establishment emphasizing or predominantly showing movies that exhibit specified sexual activities.

I. “Body studio” means any premises, other than a licensed massage parlor, tattoo parlor, reducing salon, health spa or public bath house, upon which is furnished, or which is offered to be furnished, for a fee or charge or other like consideration, the opportunity or act of painting, massaging, feeling, handling or touching the unclothed body or any unclothed portion of the body of another person, or to observe, view or photograph any such activity.

J. “City” means the city of Toppenish.

K. “Code enforcement officer” means the code enforcement officer of the city or his or her designee.

L. “Entertainer” means any person who performs or provides adult entertainment on the premises of an adult entertainment establishment, whether or not a fee is charged or accepted for adult entertainment.

M. “Employee” means any and all persons, including managers, entertainers and independent contractors, who work in or at or render any services directly related to the operation of an adult entertainment premises.

N. “Media” means anything printed or written, or any picture, drawing, photograph, motion picture, film, videotape or videotape production, or pictorial representation, or any electrical or electronic reproduction of anything that is or may be used as a means of communication. Media includes, but is not limited to, books, newspapers, magazines, movies, videos, sound recordings, CD-ROMs, other magnetic media, and undeveloped pictures.

O. “Operator” is any person who owns, operates, maintains or conducts an adult entertainment establishment.

P. “Manager” means any person, other than an operator, as defined in subsection O of this section, who supervises, manages, directs, administers or is in charge of any portion of any activity involving adult entertainment occurring at any place offering adult entertainment.

Q. “Person” means any natural person, partnership, corporation or any combination thereof.

R. “Sexually oriented toys or novelties” means instruments, devices, or paraphernalia either designed as representations of human genital organs or female breasts, or designed or marketed primarily for use to simulate human genital organs.

S. “Specified anatomical areas” means (1) less than completely and opaquely covered: human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and (2) human male genitals in a discernibly turgid state, even if completely and opaquely covered.

T. “Specified sexual activities” means human genitals in a state of sexual stimulation or arousal or acts of human masturbation, sexual intercourse, sodomy, or fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.

U. “Specified sexual exhibitions” means any exhibition, performance or dance which is intended to sexually stimulate any member of the public and which is conducted on a regular basis or as a substantial part of the premises activity. This includes, but is not limited to, any such exhibition, performance or dance performed for, arranged with or engaged in with fewer than all members of the public on the premises at that time, with separate consideration paid, either directly or indirectly, for such performance, exhibition or dance and which is commonly referred to as table dancing, couch dancing, taxi dancing, lap dancing, private dancing or straddle dancing.

V. “Substantial connection” means:

1. In a sole proprietorship, an individual who owns, operates or conducts, directly or indirectly, the adult entertainment establishment; or

2. In a partnership, an individual who shares in any potential profits of the adult entertainment establishment; or

3. In a corporation, an individual who is an officer, director, or a holder (directly or beneficially) of more than 10 percent of any class of stock; or

4. An individual who furnishes more than 10 percent of the capital financing of such adult entertainment establishment, whether in cash, goods or services. (Ord. 2013-7, 2013).

5.60.012 License prohibited to certain classes.

No license shall be issued under this chapter to:

A. A natural person who has not attained the age of 18 years.

B. A limited liability company, unless all managing members thereof are qualified to obtain a license as provided in this chapter.

C. A partnership, unless all general partners thereof are qualified to obtain a license as provided in this chapter.

D. A corporation, unless all the officers and directors thereof are qualified to obtain a license as provided in this chapter.

E. A proposed adult entertainment business operator whose place of business does not comply with all applicable requirements of the fire, building, and zoning codes of the city.

F. An applicant for any adult entertainment business license who is delinquent on city taxes, fees, fines, or penalties assessed in relation to an adult entertainment business.

G. An applicant for an adult entertainment business license whose place of business is conducted by an agent, unless such agent has obtained a manager’s license.

H. An applicant who has failed to provide information required on a license application for the issuance of the license or has made, with the intent to mislead, a materially false statement in the application for a license under this chapter. “Materially false statement” means any false statement, oral or written, which could have affected the course or outcome of the license application.

I. An applicant who has had a license previously issued under this chapter revoked within one year of the time the applicant seeks a new license. (Ord. 2013-7, 2013).

5.60.020 Adult entertainment establishment licenses.

It is unlawful for a person to own, conduct or operate an adult entertainment establishment unless such establishment is licensed as provided in this chapter. The fee for an adult entertainment establishment license and renewal shall be $1,000 per year. The license shall expire one year from the date of its issuance. In addition, a nonrefundable application fee in the amount of $200.00 must be paid at the time of filing an application in order to defray the costs of processing the application.

A. All applications for an adult entertainment establishment license shall be submitted to the code enforcement officer in the name of the person or entity proposing to conduct an adult entertainment business on the business premises and shall be signed by such person and certified as true under penalty of perjury. All applications shall be submitted on a form supplied by the city, and shall be complete when the following information and submittals are provided:

1. For each applicant: names; any aliases or previous names; driver’s license number, if any; Social Security number, if any; business, mailing, and residential address; and business and residential telephone number.

2. If a corporation, date and place of incorporation, evidence that it is in good standing under the laws of Washington, and name and address of any registered agent for service of process.

3. Whether the applicant holds any other licenses under this chapter or any license for similar adult entertainment or sexually oriented business, including motion picture theaters, adult commercial establishment and panorams, from the city or another city, county or state, and if so, the names and addresses of each other licensed business.

4. A summary of the business history of each applicant owning or operating the adult entertainment, adult commercial establishment or other sexually oriented businesses, providing names, addresses and dates of operation for such businesses, and whether any business license or adult entertainment license has been revoked or suspended, and the reason therefor.

5. For each applicant, any and all criminal convictions or forfeitures within 10 years immediately preceding the date of the application, other than parking offenses or minor traffic infractions, including the dates of conviction, nature of the crime, name and location of court and disposition.

6. For each applicant, a description of business, occupation or employment history for the three years immediately preceding the date of the application.

7. The location and doing-business-as name of the proposed adult entertainment business, including a legal description of the property, street address, and telephone number, together with the name and address of each owner and lessee of the property.

8. Two two-inch by two-inch color passport-quality photographs of the applicant, taken within six months of the date of application, showing only the full face.

9. Documentation that the applicant has attained at least 18 years of age. Any one of the following shall be accepted as documentation of age:

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

b. A state-issued identification card bearing the applicant’s photograph and date of birth;

c. An official passport or military ID issued by the United States of America;

d. An immigration card issued by the United States of America.

10. A scale drawing or diagram showing the proposed configuration of the premises for the adult entertainment business, including a statement of the total floor space occupied by the business, and marked dimensions of the interior of the premises. Performance areas, seating areas, manager’s office and stations, restrooms and service areas shall be clearly marked on the drawing. An application for a license for an adult entertainment establishment and adult commercial establishment shall include building plans which demonstrate conformance with TMC 5.60.070(C).

B. Notification of the acquisition of new general partners, managing members, officers or directors, subsequent to the issuance of an adult cabaret license, shall be provided in writing to the code enforcement officer no later than 21 days following such acquisition. The notice required shall include the information required for the original adult cabaret license application.

C. The adult entertainment establishment license, if granted, shall state on its face the name of the person or persons to whom it is issued, the expiration date, the doing-business-as name and the address of the licensed adult entertainment establishment. The permit shall be posted in a conspicuous place at or near the entrance to the adult entertainment business premises so that it can be easily read at any time the business is open.

D. No person granted an adult entertainment establishment license pursuant to this chapter shall operate the adult entertainment establishment under a name not specified on the license, nor shall any person operate an adult entertainment establishment under any designation or at any location not specified on the license.

E. Upon receipt of any complete application and fee, the code enforcement officer shall provide copies to the police department, and to other appropriate city departments or contractors, for a full investigation and review to determine compliance of the proposed adult entertainment establishment with this chapter and other applicable laws. Each adult entertainment establishment license shall be issued with a notification that it shall be subject to revocation for noncompliance of the premises with building and zoning codes and this chapter.

F. In the event the premises are not yet constructed, the departments shall base their recommendation as to premises compliance on their review of the drawings submitted with the application. Any adult entertainment establishment license approved prior to premises construction shall contain a condition that the premises must be inspected prior to occupancy, and determined to be in substantial conformance with the drawings submitted with the application and other applicable building and development regulations.

G. No person granted a license pursuant to this chapter shall operate the adult entertainment establishment under a name not specified in the license, nor shall he or she conduct business under any designation or location not specified in the license.

H. The code enforcement officer shall not issue or renew any license under this section if the information received by the code enforcement officer indicates that:

1. Any knowingly false statement was made in the application;

2. The applicant, within 10 years of the date of application, has pleaded guilty to, forfeited bail on, or has currently pending against applicant, or been convicted of violating any law, of any jurisdiction, for prostitution; pandering; pimping; lewd conduct; sexual misconduct; indecent exposure; rape in the first, second or third degree; indecent liberties; rape of a child in the first, second or third degree; child molestation in the first, second, or third degree; sexual misconduct with a minor in the first or second degree; any violation of this chapter; or other substantially similar crimes. (Ord. 2013-7, 2013).

5.60.030 Adult entertainment manager’s license.

A. It is unlawful for any person to be employed as or act as a manager, as defined in TMC 5.60.010(P), without a valid license. The fee for a license shall be $100.00 per calendar year or portion thereof. Application for such license or renewal shall be made to the code enforcement officer. In addition to the annual license fee, a nonrefundable application fee in the amount of $50.00 must be paid at the time of filing an application in order to defray the costs of processing the application.

B. All applications for issuance or renewal of a manager’s license shall be made to and filed with the code enforcement officer on forms furnished by the code enforcement officer for such purpose. All applications for a manager’s license shall be signed by the applicant and certified to be true under penalty of perjury. The manager’s license application shall require the following information:

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

2. The name and address of each business at which the applicant intends to work as a manager.

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

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

b. A state-issued identification card bearing the applicant’s photograph and date of birth;

c. An official passport or military ID issued by the United States of America; or

d. An immigration card issued by the United States of America.

4. A complete statement of all convictions of the applicant for any misdemeanor or felony violations in this or any other city, county, or state within 10 years immediately preceding the date of the application, except parking violations or minor traffic infractions.

5. A description of the applicant’s principal activities or services to be rendered.

6. Two two-inch by two-inch color passport-quality photographs of the applicant, taken within six months of the date of application, showing only the full face. Such photograph, if the license applied for is issued, shall be affixed thereto in a manner designed to discourage alteration or substitution of photographs.

This application shall state the true name of the applicant and any other names the applicant may have used, together with such other information as the code enforcement officer may deem necessary or desirable for the purpose of enforcing or otherwise administering this chapter. Applicants shall not be less than 18 years of age.

C. Each manager license shall be issued to a specific person named in the license document to manage an adult entertainment establishment at a specific location designated by street address in the license document. Manager licenses shall not be transferable to any person or adult entertainment establishment location other than as specified in the license document.

D. The code enforcement officer shall not issue or renew any license under this section if the information received by the code enforcement officer indicates that:

1. Any knowingly false statement was made in the application;

5.60.040 Entertainer’s license.

A. It is unlawful for any person to be employed as or act as an entertainer, as defined in TMC 5.60.010(L), without a valid license. The fee for a license shall be included with the initial application and each application renewal. In addition, a nonrefundable application fee must be paid at the time of filing an application in order to defray the costs of processing the application. Entertainer’s license fees and application fees shall be established by resolution of the city council, as amended from time to time.

B. All applications for issuance or renewal of an entertainer’s license shall be made to and filed with the code enforcement officer on forms furnished by the code enforcement officer for such purpose. All applications for an entertainer’s license shall be signed by the applicant and certified to be true under penalty of perjury. The entertainer’s license application shall require the following information:

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

2. The name and address of each business at which the applicant intends to work as an entertainer.

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

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

b. A state-issued identification card bearing the applicant’s photograph and date of birth;

c. An official passport or military ID issued by the United States of America; or

d. An immigration card issued by the United States of America.

5. A description of the applicant’s principal activities or services to be rendered.

7. The names and addresses of all employers or individuals or businesses for whom the applicant was an employee or independent contractor for the period of two years immediately prior to the application date, and the time period of such employment.

C. Any license issued under the provisions of this section shall be valid for employment in any adult entertainment establishment licensed under this chapter, but shall not be transferable to any other person.

D. The code enforcement officer shall not issue or renew any license under this section if the information received by the code enforcement officer indicates that:

1. Any knowingly false statement was made in the application;

5.60.050 Temporary license – Issuance.

Upon the filing of a complete application for issuance or renewal of an adult entertainment establishment license, manager’s license or entertainer’s license, the code enforcement officer shall issue a temporary license. Such temporary license shall be effective for a period of 15 days or until a final decision on issuance of a permanent license has been made. Additional temporary licenses shall be issued for 15-day periods up until a final determination on the permanent license has been made. Temporary licenses may be suspended or revoked as provided in this chapter. (Ord. 2013-7, 2013).

5.60.060 License – Issuance.

A. Upon the filing of any complete application for issuance or renewal of an adult entertainment establishment license, manager’s license or entertainer’s license, the code enforcement officer shall refer the application to the chief of the Toppenish police department, who shall cause an investigation to be made of the applicant or applicants, including the statements in the application form, and who shall furnish a written report to the code enforcement officer of the results of such investigation, including a recommendation as to whether a license should be issued. The police department shall interview in person each applicant for a new adult entertainment establishment license, manager’s license, or entertainer’s license; for any renewal of such licenses, the police department may conduct a personal interview.

The code enforcement officer shall investigate the premises and report compliance with all applicable city codes for which the code enforcement officer is responsible for enforcement.

If, from the reports mentioned in the preceding paragraphs and other information concerning the applicant or applicants, the premises and person having a substantial connection with such establishment or proposed establishment, the code enforcement officer deems the application to comply with all of the conditions required for licensing hereunder, the code enforcement officer shall issue or renew the license for which application was made.

B. Each adult entertainment establishment license shall be issued for a specific premises, the location of which shall be designated by street address on the license document. Adult entertainment establishment licenses shall not be transferable from one location to any other location, nor from one licensee to another to operate the adult entertainment establishment at the same location.

C. The code enforcement officer shall not issue or renew any license under this chapter if the information received by the code enforcement officer indicates that:

1. Any knowingly false statement was made in the license application;

2. Any person having a substantial connection with such establishment or proposed establishment within 10 years of the date of application has pleaded guilty to or has currently pending against that person, or forfeited bail, or been convicted of violation of any law of any jurisdiction for prostitution; pandering; pimping; lewd conduct; sexual misconduct; indecent exposure; rape in the first, second or third degree; indecent liberties; rape of a child in the first, second or third degree; child molestation in the first, second or third degree; sexual misconduct with a minor in the first or second degree; any violation of this chapter; or other substantially similar crimes; or

3. Any premises on which an adult entertainment establishment is sought to be located fails to meet health, safety, fire, zoning or other valid standards established by regulations and ordinances governing health and safety; provided, however, denial under this subsection shall be without prejudice to future application. (Ord. 2013-7, 2013).

5.60.070 Standards of conduct and operation.

The following standards of conduct and operation are conditions of each permit issued pursuant to this chapter. Violation will subject the person violating such standards to the penalties set forth below.

A. Entertainers and Employees. The following standards of conduct must be adhered to by employees of any adult entertainment business while in any area of an adult entertainment business in which members of the public are allowed to be present:

1. No employee or entertainer shall be unclothed or in such less than opaque and complete attire, costume or clothing so as to expose to view any portion of the female breast below the top of the areola or any portion of the pubic region, anus, buttocks, vulva or genitals, except upon a performance area defined as a stage at least 18 inches above the immediate floor level and removed at least eight feet from the nearest member of the public. A continuous railing at least three feet in height and located at least eight feet from all points of the performance area shall separate the performance area and the patron seating areas. No patron or customer shall go onto or upon an adult live entertainment performance area.

2. No employee or entertainer mingling with members of the public shall be unclothed or in less than opaque and complete attire, costume or clothing as described in subsection (A)(1) of this section, nor shall any male employee or entertainer at any time appear with his genitals in a discernibly turgid state, even if completely and opaquely covered, or wear or use any device or covering which simulates the same.

3. No employee or entertainer mingling with members of the public shall wear or use any device or covering exposed to view which simulates the breast below the top of the areola, vulva, genitals, anus, any portion of the pubic region, or buttocks.

4. No employee or entertainer shall caress, fondle, or touch any member of the public, including another entertainer, unless both such entertainers are on a stage meeting the requirements of subsection (A)(1) of this section, for the purpose of sexual arousal of either party. No employee or entertainer shall permit any member of the public to caress, fondle, or touch any employee or entertainer, for the purpose of sexual arousal of either party.

5. No employee or entertainer shall perform actual or simulated acts of sexual conduct as defined in this chapter, or any act which constitutes a violation of Chapter 7.48A RCW, the Washington Moral Nuisances Statute.

6. No employee or entertainer mingling with members of the public shall conduct any dance, performance or exhibition in or about the nonstage area of the adult cabaret unless that dance, performance or exhibition is performed at a distance of no less than four feet, measured from the forehead of the entertainer to the forehead of the customer paying for the dance, performance, or exhibition.

7. No tip or gratuity offered to or accepted by an adult entertainer may be offered or accepted prior to any performance, dance or exhibition provided by the entertainer. No entertainer performing upon any stage area shall be permitted to accept any form of gratuity offered directly to the entertainer by any member of the public. Any gratuity offered to any entertainer performing upon any stage areas must be placed into a receptacle provided for receipt of gratuities by the adult entertainment business or provided through a manager on duty on the premises. Any gratuity or tip offered to any adult entertainer conducting any performance, dance or exhibition in or about the nonstage area of the adult entertainment business shall be placed into the hand of the adult entertainer or into a receptacle provided by the adult entertainer, and not upon the person or into the clothing of the adult entertainer.

8. 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.

9. No adult entertainment conducted within or upon the licensed premises shall be visible from any public place outside the licensed premises.

B. Adult Entertainment Manager’s License. The following are required of an adult entertainment manager:

1. Admission must be restricted to persons of the age 18 years or more. It is unlawful for any owner, operator, manager or other person in charge of an adult entertainment business to knowingly permit or allow any person under the minimum age specified to be in or upon such premises. A licensed manager or other employee shall verify the age of all members of the public seeking to enter an adult entertainment business.

2. Neither the performance nor any photograph, drawing, sketch or other pictorial or graphic representation thereof displaying any portion of the breast below the top of the areola or any portion of the pubic hair, buttocks, genitals, and/or anus may be visible outside of the adult entertainment business. The prohibition of this subsection (B)(2) is intended to be limited to adult entertainment business performances and representation of same, and is not intended to prohibit the activities enumerated in TMC 5.60.010(E)(4).

3. No member of the public shall be permitted at any time to enter into any of the nonpublic portions of the adult entertainment business, which shall include but are not limited to: the dressing rooms of the entertainers or other rooms provided for the benefit of employees, and the kitchen and storage areas; except that persons delivering goods and materials, food and beverages, or performing maintenance or repairs to the premises or equipment on the premises may be permitted into nonpublic areas to the extent required to perform their job duties.

4. The licensee shall not operate or maintain any warning system or device, of any nature or kind, for the purpose of warning customers or patrons or any other persons located on the licensee’s premises that police officers or other city inspectors are approaching or have entered the licensee’s premises.

5. A licensed manager shall be on duty at an adult entertainment business at all times adult entertainment is being provided or members of the public are present on the premises. The name and license of the manager shall be prominently posted during business hours. The manager shall be responsible for verifying that any person who provides adult entertainment within the premises possesses a current and valid entertainer’s license.

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

7. The manager or an assistant manager licensed under this chapter shall maintain visual observation of each member of the public at all times any entertainer is present in the public or performance areas of the adult entertainment business premises. Where there is more than one performance area, or the performance area is of such size or configuration that one manager or assistant manager is unable to visually observe, at all times, each adult entertainer, each employee, and each member of the public, a manager or assistant manager licensed under this chapter shall be provided for each public or performance area or portion of a public or performance area visually separated from other portions of the adult entertainment business premises.

8. The manager shall be responsible for and shall assure that the actions of members of the public, the adult entertainers and all other employees shall comply with all requirements of this chapter.

9. Every manager 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.

10. Any enclosed room or cubicle within the licensed premises where adult entertainment is performed shall not be locked, barred or fit with locking devices at any time the premises are open to the public.

11. Each adult entertainment establishment shall not be owned, operated or conducted without a licensed manager in such establishment at all times such establishment is open to the public.

12. No person, other than an employee, shall be allowed in any area other than a public restroom of an adult entertainment establishment, including any booths, cubicles, rooms or stalls, which is not completely visible from all common areas of the premises.

13. A list of any and all entertainment provided on the premises must be posted and conspicuously displayed in the common areas of each place offering adult entertainment.

14. No performance or any photograph, drawing, sketch or other pictorial or graphic representation thereof displaying any portion of the breasts below the top of the areola or any portion of the pubic hair, vulva, buttocks, genitals or anus shall be allowed to be visible outside of the licensed premises.

C. Adult Entertainment Establishment License.

1. Responsibility for Conduct of Entertainers and Employees. The adult entertainment establishment operator shall assure that all managers, entertainers and employees comply with standards of conduct of this section and all other requirements of this chapter. Failure to take reasonable measures to promptly correct violations which were known or should have been known to the operator shall be grounds for suspension or revocation of the adult entertainment business operator’s license or other penalties provided in this chapter.

2. Performance Area. The performance area of the adult entertainment business premises where adult entertainment is provided shall be a stage or platform at least 18 inches in elevation above the level of the patron seating areas, and shall be separated by a distance of at least eight feet from all areas of the premises to which members of the public have access. A continuous railing at least three feet in height and located at least eight feet from all points of the performance area shall separate the performance area and the patron seating areas. The stage and the entire interior portion of cubicles, rooms or stalls wherein adult entertainment is provided must be visible from the common areas of the premises and at least one manager’s station. Visibility shall not be blocked or obstructed by doors, curtains, drapes or any other obstruction whatsoever.

3. Lighting. Sufficient lighting shall be provided and equally distributed throughout the public areas of the premises so that all objects are plainly visible at all times. A minimum lighting level of 30 lux horizontal, measured at 30 inches from the floor and on 10-foot centers, is hereby established for all areas of the adult entertainment business premises where members of the public are admitted.

4. Signs. A sign at least two feet by two feet, with letters at least one inch high, shall be conspicuously displayed in the public area(s) of the premises stating the following:

THIS ADULT ENTERTAINMENT BUSINESS IS REGULATED BY THE CITY OF TOPPENISH. ENTERTAINERS ARE:

A. NOT PERMITTED TO ENGAGE IN ANY TYPE OF SEXUAL CONDUCT;

B. NOT PERMITTED TO APPEAR SEMI-NUDE OR NUDE, EXCEPT ON STAGE;

C. NOT PERMITTED TO ACCEPT TIPS OR GRATUITIES IN ADVANCE OF THEIR PERFORMANCE;

D. NOT PERMITTED TO ACCEPT TIPS DIRECTLY FROM PATRONS WHILE PERFORMING UPON ANY STAGE AREA.

5. Recordkeeping Requirements.

a. All papers, records, and things required to be kept pursuant to this chapter shall be open to inspection by the code enforcement officer or that officer’s designated agents during the hours when the licensed premises are open for business, upon two days’ written notice. The purpose of such inspections shall be to determine whether the papers, records, and things meet the requirements of this chapter.

b. Each adult entertainment business shall maintain and retain for a period of two years the name, address, and age of each person employed or otherwise retained or allowed to perform on the premises as an adult entertainer, including independent contractors and their employees. This information shall be open to inspection by the city clerk during hours of operation of the business upon 24 hours’ notice to the licensee.

D. It is unlawful for any adult entertainment business to be operated or otherwise open to the public between the hours of 2:00 a.m. and 10:00 a.m.

E. Exterior signs and any interior sign or notice visible to the public may announce the name of the business and the nature of the business by the term “adult entertainment,” “adult theater” or “adult use establishment” but shall not contain any representation of the human body or make any statement pertaining to the human body, whether of entertainers, patrons or the public.

F. It is unlawful for any person to be employed in an adult entertainment establishment or offer to dance in an adult entertainment establishment at a time when it is unlicensed under this chapter.

G. This section shall not be construed to prohibit:

1. Plays, operas, musicals, dances or other dramatic works which are not obscene; or

2. Classes, seminars and lectures held for serious scientific or educational purposes; or

3. Exhibitions or dances which are not obscene.

H. For purposes of subsection G 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;

2. The activity depicts patently offensive representations of: ultimate sexual acts, normal or perverted, actual or simulated; or 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.

I. For purposes of subsection G of this section, an activity is “dramatic” if the activity is of, relating to, devoted to, or concerned specifically or professionally with current drama or the contemporary theater.

J. This chapter shall not be deemed to permit any activity, in taverns, bars, cocktail lounges, or any premises maintaining liquor licenses, not permitted by the State Liquor Control Board. (Ord. 2013-7, 2013).

5.60.080 Allowing minor in adult entertainment establishment.

It is unlawful for the licensee or manager of an adult entertainment establishment to knowingly allow a person under the age of 18 years to be on the premises of an adult entertainment establishment. (Ord. 2013-7, 2013).

5.60.090 Inspection.

A. Inspections. In order to ensure compliance with this chapter, all areas of licensed adult entertainment businesses which are open to members of the public shall be open to inspection by the code enforcement officer during the hours when the premises are open for business. The purpose of such inspections shall be to determine if the licensed premises are operated in accordance with the requirements of this chapter. Additionally, all areas of licensed adult entertainment businesses used as a dressing room or off-stage area for licensed entertainers shall be open to inspection by such city agents and employees of the same sex as the entertainers to determine if the licensed premises are operated in accordance with the requirements of this chapter, including but not limited to verifying identity and age of entertainers, and verifying that each entertainer has a valid entertainer’s license.

B. It is unlawful for a person to hinder or obstruct in any way an officer in the performance of his or her duty under subsection A of this section. (Ord. 2013-7, 2013).

5.60.100 Denial or revocation of license.

A. Any application for issuance or renewal of any license pursuant to this chapter shall not be accepted by the code enforcement officer unless accompanied by the appropriate license fee. In the event an application for a license is refused, the amount tendered as the license fee shall not be returned to the applicant but shall be retained by the city to defray the cost of examination and investigation.

B. Every license issued or renewal pursuant to this chapter shall expire at midnight of the day a year from the date of issuance.

C. In addition to other penalties provided herein or by other applicable law, the code enforcement officer shall have the right to suspend or revoke any license issued pursuant to this chapter upon a showing that any establishment or person licensed hereunder has operated in violation of the provisions of this chapter or has permitted or engaged in unlawful conduct on the premises. No license under this chapter shall be revoked unless the code enforcement officer has first notified the parties in writing of a date not less than five days subsequent to the date of service of the notice, at which time the parties so notified may appear in person and be represented by counsel before the code enforcement officer and show cause why the license should not be suspended or revoked. (Ord. 2013-7, 2013).

5.60.110 Appeal of license suspension or revocation.

A. The Toppenish city council shall have jurisdiction to hear appeals from the following orders of the code enforcement officer:

1. Denial of a license or licenses for which application is made pursuant to this chapter;

2. Suspensions or revocations of licenses issued pursuant to this chapter.

B. The aggrieved party shall have the right to appeal the code enforcement officer’s order of denial, suspension or revocation by giving a written notice to the code enforcement officer within seven days after the entry of the order from which the appeal is taken. The notice shall specify every ground relied on by the appealing party as reasons for reversal by the city council of the order of the code enforcement officer from which the appeal is taken. The notice of appeal shall specify an address at which the appellant may be given notice of hearing on the appeal.

C. After the timely filing of such an appeal, the Toppenish city council shall set a time and place, not more than 30 days from the date of receipt of such notice of appeal, for a hearing thereon. At the hearing the appellant shall be entitled to appear in person, be represented by counsel, and offer evidence in support of the grounds relied on by appellant to reverse the order of the code enforcement officer.

D. Within 10 days from the date of the hearing before the city council, the council shall either affirm or reverse the order of the code enforcement officer from which the appeal was taken; and a written notice of the decision of the council shall forthwith be served on the appellant or mailed to the address specified by appellant for giving the notice of appeal under subsection B of this section. The decision so made by the council shall be final. (Ord. 2013-7, 2013).

5.60.120 Stay of license suspension or revocation.

A. All suspensions or revocations under this chapter shall be effective immediately upon issuance of an order of the code enforcement officer.

B. Filing a notice of appeal of an order of the code enforcement officer shall stay the suspension or revocation of a license issued pursuant to this chapter and until final review by the Toppenish city council.

C. An aggrieved party may seek review of a decision of the city council by a court of competent jurisdiction. The aggrieved party may, within 30 days of the city council’s decision, stay a suspension or revocation upheld by the final decision of the Toppenish city council. Such a stay shall commence upon the aggrieved party filing with a court of competent jurisdiction an action seeking review and serving on the city notice of the action. A stay so initiated will be effective during the pendency of the action. (Ord. 2013-7, 2013).

5.60.130 Penalties.

Any person knowingly violating any of the provisions of this chapter is a disorderly person and is guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than $500.00 or by imprisonment in the city jail facility for not more than 90 days or by both such fine and imprisonment. Each separate day or any portion thereof during which any violation of any provision of this chapter occurs or continues shall be deemed a separate and distinct offense. (Ord. 2013-7, 2013).

5.60.140 Severability.

Should any section, paragraph, sentence, clause or phrase of this chapter or its application to any person or circumstance be declared unconstitutional or otherwise invalid for any reason, such decision shall not affect the validity of the remaining portions of this chapter or its application to other persons or circumstances. (Ord. 2013-7, 2013).