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HomeMy WebLinkAbout94-27 - Adding Chapter 5.96 to Title 5 of the Code of the City of Newport Beach, and Repealing Chapter 5.30ORDINANCE NO. 94 -27 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADDING CHAPTER 5.96 TO TITLE 5 OF THE CODE OF THE CITY OF NEWPORT BEACH, AND REPEALING CHAPTER 5.30 WHEREAS, the City Council of the City of Newport Beach wishes to promote the City of Newport Beach's great interest in protecting • and preserving the quality of the residential, commercial and industrial areas of the City, and the quality of life of the people of the City of Newport Beach and visitors to the City; and WHEREAS, the City is empowered to enact regulatory ordinances protecting and promoting the general welfare, health and safety of the City of Newport Beach pursuant to its Charter and the Constitution and general laws of the State of California; and WHEREAS, the City Council of the City of Newport Beach believes as true the studies conducted in the cities of Austin, Texas; Biloxi, Mississippi; Garden Grove, California; Indianapolis, Indiana; Los Angeles, California; and Phoenix, Arizona which show Adult- Oriented Businesses cause secondary impacts in the vicinity • of these businesses which degrade the areas of the City in which they are located, cause a blighting effect on the City, and increase crime in general, and sex related crimes in particular; and WHEREAS, prior to the adoption of this Ordinance, the City Council reviewed detailed studies prepared by other jurisdictions regarding the detrimental social and economic effects on persons and properties immediately surrounding established Adult Oriented Businesses. These studies included those prepared by the cities of Austin, Texas; Biloxi, Mississippi; Indianapolis, Indiana; Garden Grove, California; Los Angeles, California; and Phoenix, Arizona; and is WHEREAS, the City Council of the City of Newport Beach believes the following statements are true, in part based upon its understanding of the experiences of cities such as Austin, Texas; Biloxi, Mississippi; Garden Grove, California; Indianapolis, Indiana; Los Angeles, California; and Phoenix, Arizona; -1- A. Crime rates are higher in residential areas surrounding Adult Oriented Businesses than in commercial or indus- trial areas surrounding sexually Oriented Businesses; B. Areas within close walking distance of single and multiple family dwellings should be free of Adult • Oriented Businesses; C. Adult Oriented Businesses should not be located in areas of the City which are in the vicinity of residential uses, religious institutions, parks and schools; D. The image of the City of Newport Beach as a pleasant and attractive place to reside will be adversely affected by the presence of Adult Oriented Businesses in close proximity to residential uses, religious institutions, parks and schools; E. The existence of Adult Oriented Businesses in close proximity to residential areas has been shown in some cities to reduce the property values in those residential • areas; F. The City Council believes that allowing adult Oriented Businesses in certain identified zones is appropriate because such zones include ample accessible real estate including acreage in all stages of development from raw land to developed, industrial warehouse, and shopping space that is easily accessible by freeways, highways and roads; G. Without the adoption of an ordinance regulating these businesses, Adult Oriented Businesses might be able to locate anywhere within the City by right, requiring no permit other than a business license to operate; H. A reasonable regulation of the location of Adult Oriented Businesses protects the image of the community and its property values and protects its residents from the adverse secondary effects of Adult Oriented Businesses, while providing those who desire to patronize Adult Oriented Businesses an opportunity to do so in appropriate areas within the City; -2- I. Regulations for Adult Oriented Businesses should be developed to prevent deterioration and /or degradation of the vitality of the community before the problem exists, rather than waiting for a problem to be created; J. Adult Oriented Businesses should be regulated by the location of zoning which will separate such land uses from other incompatible uses; and WHEREAS, the aforementioned studies show that sex - related offenses are included within the category of secondary effects caused by unregulated or underregulated Adult Oriented Businesses; and WHEREAS, the City Council believes that persons who have been convicted of sex - related offenses have shown a propensity to commit such offenses and should not be permitted to operate Adult Oriented Businesses for two (2) years after such conviction. This is because the sexually oriented nature of the business creates an increased opportunity for the commission of sex - related offenses by •persons who have exhibited a propensity for the commission of such offenses; and WHEREAS, the City Council believes as true the documents and judicial decisions in the public record established and submitted in conjunction with this Ordinance which demonstrate that various operational practices of Adult Oriented Businesses (as that term is defined in Section 5.96.010 of the Newport Beach Municipal Code) increase criminal activity, including but not limited to sexually related criminal activity, and increase the likelihood of the transmission of diseases including but not limited to sexually transmitted diseases such as gonorrhea, syphilis, herpes, and acquired immune deficiency syndrome ( "AIDS ") and hepatitis -B; and WHEREAS, the City Council believes the following statements is are true, in part, based upon its understanding of the documents and judicial decisions in the public record established and sub- mitted with this Ordinance: A. Evidence indicates that dancers, models, entertainers, and other persons who publicly perform Specified Sexual Activities or publicly display specified Anatomical Parts in Adult Oriented Businesses (as those terms are defined -3- in Section 5.96.010) (collectively referred to as "Performers ") have been found to engage in sexual activi- ties with patrons of Adult Oriented Businesses on the site of the Adult Oriented Business; B. Evidence has demonstrated that Performers employed by • Adult Oriented Businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the Performers in live sex shows; C. Evidence indicates that Performers at Adult Oriented Businesses have been found to engage in acts of prosti- tution with patrons of the establishment; D. Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interior cannot be seen from public areas of the establishment ( "Individual Viewing Areas ") regularly have been found to be used as a location for engaging in unlawful sexual activity; • E. Many Individual Viewing Areas have been found to contain "glory holes" in the walls joining abutting Individual Viewing Areas which are used by customers to facilitate sexual activity between the occupants of the abutting Individual Viewing Areas; F. Individual Viewing Areas have been found to be unsanitary due to the existence of semen, saliva, and blood on the walls and floors of the Individual Viewing Areas; G. Medical science has found that the AIDS and hepatitis -B viruses are carried in the semen of infected males and have a potential life span of 2 to 3 hours outside the human body; 40 H. The existence of semen on the walls and floors of the Individual Viewing Areas can facilitate the transmission of the AIDS and hepatitis -B viruses; I. The practice of individuals having anonymous and /or unprotected sexual relations in Individual Viewing Areas or poorly lit or unlit areas can facilitate the -4- transmission of the AIDS and hepatitis -B viruses as well as other sexually transmitted diseases; J. Poorly lit or unlit areas of Adult Oriented Businesses provide a location for people to engage in illegal sexual activities; K. Police agencies have determined that some Adult Oriented Businesses and the operators thereof have been found to be directly engaged in (as well as aid and abet) criminal and illegal sexual activity. Such individuals also have been known to use aliases; L. Many jurisdictions have found that Adult Oriented Businesses generate excessive noise and disorderly conduct, particularly at the closing time of the Adult Oriented Business, which creates an adverse noise public safety impact on surrounding businesses and communities; and WHEREAS, while the City Council desires to protect the rights of those who provide adult oriented entertainment, it desires to do • so in a manner which decreases, to the greatest extent feasible, the undesirable secondary effects associated with such entertain- ment; and WHEREAS, based upon the evidence contained in the documents, judicial opinions, and other public records submitted with this Ordinance, the City Council finds as follows: A. The City has an interest in ensuring that individuals who operate Adult Oriented Businesses have not been convicted of certain criminal offenses, particularly sexually related offenses. The application requirements contained in Chapter 5.96 of the Newport Beach Municipal Code further that interest; • B. Requiring the presence of one (1) security guard for every 200 patrons at Adult Oriented Businesses providing live entertainment is likely to reduce the disorderly conduct and illegal activity observed to occur at Adult Oriented Businesses in other jurisdictions; C. Requiring Adult Oriented Businesses to close at 2:00 a.m. is likely to reduce the early morning criminal activity -5- occurring at and near Adult Oriented Businesses and is likely to eliminate the existence of excessive noise and disorderly conduct in and around the community in the early hours of the morning; D. The requirement that Adult Oriented Businesses only allow • performances which are characterized by Specified Sexual Acts or future Specified Anatomical Parts such that patrons not be permitted within 6 feet of the Performers is likely to reduce the opportunities for illegal sexual activity to occur between Performers and patrons, and is particularly likely to reduce the opportunity for such illegal sexual activity to occur at the Adult Oriented Business; E. Requiring Performers in Individual Viewing Areas to be completely separated from patrons by a floor to ceiling plexiglass or other clear, permanent barrier is likely to reduce the opportunity for illegal sexual activity to • occur between Performers and patrons and reduce the possibility of the transmission of sexually transmitted diseases between Performers and patrons; F. Requiring the entire interior portion of Individual Viewing Areas to be visible from aisles and public areas of the Adult Oriented Business is likely to reduce the opportunity for illegal sexual activity to occur within the Individual Viewing Area; G. Requiring areas within Adult Oriented Businesses to be minimally illuminated to the standards contained in Chapter 5.96 of the Newport Beach Municipal Code is likely to reduce the opportunity for the occurrence of illegal sexual activity in dark portions of Adult • Oriented Businesses; H. Prohibiting any physical contact between Performers and patrons of Adult Oriented Businesses is likely to reduce the opportunity for the occurrence of illegal sexual activity between patrons and Performers; I. Prohibiting holes or openings between the interior spaces of Individual Viewing Areas is likely to reduce the -6- opportunity for the occurrence of illegal sexual activity between the occupants of Individual Viewing Areas; J. Prohibiting the occupancy of more than one person in an Individual Viewing Area at any time is likely to reduce the opportunity for the Individual Viewing Area to be • used for illegal sexual activity; K. Prohibiting patrons of Adult Oriented Businesses from offering payments or gratuities and prohibiting Performers from accepting the same is likely to reduce the opportunity for illegal sexual activity to occur between patrons and Performers; and WHEREAS, while the City Council of the City of Newport Beach desires to protect the rights conferred by the United States Constitution to Adult Oriented Businesses, it does so in a manner that ensures the continued and orderly development of property within the City and diminishes, to the greatest extent feasible, those undesirable secondary effects which the aforementioned studies have shown to be associated with the development and • operation of Adult Oriented Businesses; and WHEREAS, it is not the intent of the City in adopting this Ordinance to suppress any activities protected by the First Amendment, but rather to enact a content neutral Ordinance which addresses the secondary effects Adult Oriented Businesses have on the City; and WHEREAS, on June 27, 1994 , the City Council conducted a public hearing on this Ordinance, and received testimony and information from the public and City staff. NOW, THEREFORE, the City Council of the City of Newport Beach hereby ordains as follows: Section 1: Chapter 5.96 is hereby added to Title 5 of the Newport Beach Municipal Code to read in its entirety as follows: Chapter 5.96 Adult Oriented Business 5.96.005 Intent 5.96.010 Definitions -7- 5.96.015 5.96.020 5.96.025 5.96.030 5.96.035 • 5.96. 040 5.96.045 5.96.050 5.96.055 Permit Required Application Requirements Findings /Requirements Permit Duration Permit Renewal Permits Nontransferable; Use Specific Enforcement and Revocation Violation Existing Adult Businesses Sec. 5.96.005 Intent. The intent of this Chapter is to regulate Adult Oriented Businesses which, because of their very nature, are believed to have many of the recognized significant secondary effects on the community which include, but are not limited to: depreciated property values and increased vacancies in residen- tial and commercial areas in the vicinity of the • Adult Oriented Businesses; higher crime rates, noise, debris or vandalism in the vicinity of Adult Oriented Businesses; and blighting conditions such as low level maintenance of commercial premises and parking lots which thereby have a deleterious effect upon adjacent areas. Special regulation of these uses is necessary to insure that these adverse effects will not contribute to the blight- ing or downgrading of the neighborhoods in the vicinity of the Adult Oriented Businesses. It is neither the intent, nor effect of this section to impose limitations or restrictions on the content • of any communicative material. Similarly, it is neither the intent, nor effect of this section to restrict or deny access by adults to Sexually Oriented Materials or Merchandise protected by the First Amendment, or to deny access by the distribu- tors or exhibitors of Adult Oriented Business to their intended market. W-M Nothing in this Section is intended to authorize, legalize or permit the establishment, operation or maintenance of any business, building or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful exposure, sexual conduct, lewdness or • obscene or harmful matter or the exhibition or public display thereof. See. 5.96.010 Definitions. A. "Adult Bookstore": Any establishment, which as a regular and substantial course of conduct, displays and /or distributes Adult Merchandise, books, periodicals, magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films, or other written, oral or visual representations which are distinguished or characterized by an emphasis on a matter depicting, • describing or relating to Specified Sexual Activi- ties or Specified Anatomical Parts. (See "Adult Oriented Business" for definition of regular and substantial portion of its business.) B. "Adult Cabaret ": A nightclub, bar, lounge, restaurant or similar establishment or concern which features as a regular and substantial course of conduct, any type of live entertainment, films, motion pictures, videos, slides, other photographic reproductions, or other oral, written, or visual representations which are characterized by an emphasis on matter depicting, describing or relat- • ing to Specified Sexual Activities or Specified Anatomical Parts. C. "Adult Hotel /Motel ": A hotel or motel, which as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed- circuit television or other medium, material which is distinguished WZ or characterized by the emphasis on matter depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts and /or which rents, leases, or lets any room for less than a 12 -hour period and /or rents, leases or • lets any room more than once in a 24 -hour period and /or which advertises the availability of any of the above. D. "Adult Model Studio ": Any premises where there is furnished, provided or procured a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts where such model(s) is being observed or viewed by any person for the purpose of being sketched, painted, drawn, sculptured, photographed, filmed, or videotaped for a fee, or any other thing of value, as a considera- tion, compensation, or gratuity for the right or opportunity to so observe the model or remain on the premises. Adult Model Studio shall not include any Live Art Class or any studio or classroom which is operated by any public agency, or any private educational institution authorized to issue and confer a diploma or degree under Section 94300 et seq. of the Education Code. E. "Adult Motion Picture Arcade ": Any business establishment or concern containing coin or slug operated or manually or electronically controlled still, motion picture or video machines, projectors, or other image producing devices that are maintained to display images to an individual in Individual Viewing Areas when those images are distinguished or characterized by an emphasis on matter depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. F. "Adult- Oriented Business ": Any business establishment or concern which as a regular and -10- substantial course of conduct performs as an Adult Bookstore, Adult Theater, Adult Motion Picture Arcade, Adult Cabaret, Stripper, Adult Model Studio, Adult Motel/ Hotel; any business establishment or concern which as a regular and substantial course of conduct sells or distributes • Sexually Oriented Merchandise or Sexually Oriented Material; or any other business establishment or concern which as a regular and substantial course of conduct offers to its patrons products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to Specified Sexual Activities or Specified Anatomical Parts. "Adult Oriented Business" does not include those uses or activities, the regulation of which is preempted by state law. "Adult Oriented Business" shall also include any business establishment or concern which, as a regular and substantial course of conduct provides or allows performers, models, actors, actresses, or employees to appear in any place in attire which does not opaquely cover Specified Anatomical Parts. For the purposes of this Section, a business establishment or concern has established the provision of products, merchan- dise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to Specified Sexual Activities or Speci- fied Anatomical Parts as a regular and substantial course of conduct when one or more of the following • conditions exist: 1. The area devoted to Adult Merchandise and /or Sexually Oriented Material exceeds more than 25 percent of the total display or floor space area open to the public; 2. The business establishment or concern presents any type of live entertainment which is -11- characterized by an emphasis on Specified Sexual Activity or Specified Anatomical Parts at least four times in any month. 3. The regular and substantial course of conduct of the business consists of or involves the sale, trade, display or presentation of • services, products, or entertainment which are characterized by an emphasis on matter depict- ing, describing, or relating to Specified Sexual Activities or Specified Anatomical Parts. G. "Adult Theater ": a business establishment or concern which, as a regular and substantial course of conduct, presents live entertainment, motion pictures, videos, slide photographs, or other pictures or visual reproductions which are distin- guished or characterized by their emphasis on matter depicting, describing, or relating to • Specified Sexual Activities or Specified Anatomical Parts. H. "Live Art Class ": Any premises on which all of the following occur: there is conducted a program of instruction involving the drawing, photographing, or sculpting of live models exposing Specified Anatomical Parts; instruction is offered in a series of at least 2 classes; the instruction is offered indoors; an instructor is present in the classroom while any participants are present; and pre- registration is required at least 24 hours in advance of participation in the class. • I. "Sexually Oriented Material ": Any element of Sexually Oriented Merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, video, or other written, oral, or visual representation which, for purposes of sexual arousal, provides depictions which are characterized by an emphasis on matter -12- depicting, describing, or relating to Specific Sexual Activities or Specified Anatomical Parts. J. "Sexually Oriented Merchandise ": Sexually oriented implements and paraphernalia, such as, but not limited to: dildos, auto sucks, sexually oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado- masochistic activity. K. "Specified Anatomical Parts ": 1. Less than completely and opaquely covered human genitals; pubic region; buttocks; or female breast below a point imme- diately above the top of the areola; or 2. Human male genitals in a discernibly turgid • state, even if completely and opaquely covered. L. "Specified Sexual Activities ": 1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral .anal copulation, bestiality, direct physical stimulation of unclothed geni- tals, flagellation or torture in the context of a sexual relationship, or the use of excretory function in the context of a sexual relationship, any of the following depicted sexually oriented acts • or conduct: anilingus, buggery, copro- phagy, coprophilia, cunnilingus, fella- tio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerastia; or 2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or -13- 3. Use of human or animal ejaculation, sodomy, oral copulation, coitus, or masturbation; or 4. Fondling or touching of nude human genitals, pubic region, buttocks or female breast; or • 5. Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or 6. Erotic or lewd touching, fondling or other sexually oriented contact with an animal by a human being; or 7. Human excretion, urination, menstruation, vaginal or anal irrigation; or 8. Striptease or the removal of clothing to the point where Specified Anatomical Parts are not opaquely covered. Sec. 5.96.015 Permit Required. No Adult Oriented Business shall be permitted to operate, engage in, conduct or carry on business within the City unless the owner of the business first obtains both an Adult Oriented Business Permit and a Business License from the City of Newport Beach. Sec. 5.96.020 Application Requirements. The property owner, or authorized agent of the property owner, is eligible to request an Adult Oriented Business Permit. Applications shall be • submitted to the Revenue Division. The following information is required at the time an Adult Oriented Business Permit is submitted: A. A completed Adult Oriented Business Permit application signed by the property owner or authorized representative. -14- B. A non - refundable deposit or fee as set forth by ordinance or resolution of the City Council. C. A Letter of Justification and diagram or floor plan describing the proposed project and explaining how it complies or will comply with the findings /requirements contained in Section 5.96.025. D. Signed statement by the applicant verifying the applicant intends to and will comply with all operational requirements of Section 5.96.025. E. All other information as required by City of Newport Beach Adult Oriented Business Permit Information Sheet. Sec. 5.96.025 Findings /Requirements. The City Manager shall issue an Adult Oriented Business Permit within fifteen days of receipt of a • complete application if he /she finds that the application fully complies with the findings/ requirements of this section. The decision of the City Manager to issue or deny a Permit shall be final. A. The Adult Oriented Business is located in an approved zoning district in compliance with zoning and location requirements of Chapter 20.74 of this Code. B. The Adult Oriented Business is not located completely or partially within any mobile structure or pushcart. • C. The Adult Oriented Business shall not stage any special events, promotions, festivals, concerts or similar events which would increase the demand for parking beyond the approved number of spaces for the particular use. -15- D. The Adult Oriented Business shall not conduct any massage, acupuncture, tattooing, acupres- sure, fortune - telling or escort services on the premises. E. The Adult Oriented Business provides a secur- ity system that visually records and monitors • all parking lot areas. All indoor areas of the Adult Oriented Business shall be open to public view at all times with the exception of restroom facilities. "Accessible to the public" shall include but not be limited to those areas which are only accessible to members of the public who pay a fee and /or join a private club or organization. F. The Adult Oriented Business complies with the City's sign regulations. G. The Adult Oriented Business complies with the development and design requirements of the • zone in which it is to be located for the specific underlying use. H. The Adult Oriented Business shall not display any Sexually Oriented Material or Sexually Oriented Merchandise which would be visible from any location outside the Adult Oriented Business. I. The Adult Oriented Business shall not allow admittance to any person under the age of 18 if no liquor is served, or under the age of 21 if liquor is served. J. The Adult Oriented Business will not operate • between the hours of 2:00 a.m. and 7:00 a.m. K. Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, of the Adult Oriented Business have been found guilty within the past two (2) years of a misdemeanor or felony classified by the State as a sex- -16- related offense and have not violated any of the provisions of an Adult Oriented Business Permit or similar permit or license in any city, county, territory, or state. L. The Adul • restroom patrons. Sexually Oriented Oriented Business provides separate facilities for male and female The restrooms shall be free from Oriented Materials and Sexually Merchandise. Only one person shall be allowed in the restroom at any time, unless otherwise required by law, in which case the Adult Oriented business shall employ a rest- room attendant who shall be present in the restroom during operating hours who shall prevent any person(s) from engaging in any Specified Sexual Activities within the restroom. M. The interior of the Adult Oriented Business is • configured such that there is an unobstructed view of every public area of the premises, including but not limited to the interior of all Individual Viewing Areas, from a manager's station which is no larger than 32 square feet of floor area with no single dimension being greater than 8 feet in a public portion of the establishment. No public area, including but not limited to the interior of any Individual Viewing Area, shall be obscured by any door, curtain, wall, two way mirror or other device which would prohibit a person from seeing into • the interior of the Individual Viewing Area from the manager's station. A manager shall be stationed in the manager's station at all times the business is in operation or open to the public in order to enforce all rules and regulations. No Individual Viewing Area shall be designed or operated to permit occupancy of -17- more than one person at a time. "Individual Viewing Area" shall mean any area designed for occupancy of one person for the purpose of viewing live performances, pictures, movies, videos or other presentations. To the extent • this provisions is inconsistent with any other provision of this code regulating the interior arrangement of Adult Oriented Businesses this provision shall control. N. All areas of the Adult Oriented Business shall be illuminated at a minimum of 2.0 foot - candle, minimally maintained and evenly distributed at ground level. O. The Individual Viewing Areas of the Adult Oriented Business shall be operated and maintained with no holes, openings or other means of direct visual or physical access between the interior space of two or more • Individual Viewing Areas. P. The Adult Oriented Business complies with the Noise Element of the General Plan, Interior and Exterior Noise Standards and any mitigation measures necessary to reduce the project's noise impacts to the City's articu- lated noise standard. Q. No live entertainment, as that term is defined in Section 5.28.010 of this Code, shall be provided wihtout first obtaining a permit pursuant to Chapter 5.28 of this Code. R. No building, premises, structure, or other • facility shall be permitted to contain more than one type of Adult Oriented Business as such types of Adult Oriented Business are defined in Section 5.96.010. For the purposes of this section, the catch -all phrase "Adult Oriented Business" shall not be considered a single type of Adult Oriented Business. -18- S. No Individual Viewing Area may be occupied by more than one (1) person at any one time. T. Permanent barriers shall be installed and maintained to screen the interior of the premises from public view for each door used as an entrance /exit to the business. No exterior door or • window shall be propped of kept open at any time during hours of operation; any exterior windows shall be covered with opaque covering at all times. Sec. 5.96.030 Permit Duration. An Adult Oriented Business Permit shall be valid for a period of one (1) year from the date of issuance. Sec. 5.96.035 Permit Renewal. An Adult Oriented Business Permit shall be renewed on a year to year basis provided that the permittee • and the Adult Oriented Business continues to meet the requirements set forth in this Chapter. A request for Permit renewal must be accompanied by a completed Adult Oriented Business Permit applica- tion. If said application conforms to the pre- viously approved application and the Adult Oriented Business has not changed, the Permit shall be renewed by the Revenue Manager for another year. Any change or alteration in that nature or operation of the Adult Oriented Business will require the renewal to be reviewed by the City Manager. The renewal fee for an Adult Oriented • Business Permit shall be established by ordinance or resolution of the City Council. Sec. 5.96.040 Permits Non - Transferable; Use Specific. No Adult Oriented Business Permit may be sold, transferred, or assigned by any permittee or by operation of law, to any other person, group, -19- partnership, corporation or any other entity. Any such sale, transfer, or assignment or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the Permit and the Permit shall be thereafter null and void. An Adult Oriented Business Permit held by a corpora- tion or partnership is subject to the same rules of transferability as contained above. Any change in the nature or composition of the Adult Oriented Business from one element of an Adult Oriented Business to another element of an Adult Oriented Business or any increase of ten percent (10 %) or more of the floor area of the Adult Oriented Business shall also render the Permit null and void. An Adult Oriented Business Permit shall only be valid for the exact location specified on the Permit. • Sec. 5.96.045 Enforcement and Revocation. A. Inspections. The Permittee shall permit officers of the City of Newport Beach, the County of Orange, and each of their authorized representatives to conduct unscheduled inspections of the premises of the Adult Oriented Business for the purpose of ensuring compliance with the law at any time the Adult Oriented Business is open for business or occupied. B. Revocation grounds. The City Manager may revoke an Adult Oriented Business Permit when he or she discovers that any • of the following have occurred: 1. The permittee has failed to comply with any of the findings /requirements contained in Section 5.96.025; 2. The application contains incorrect, false or misleading informations -20- 3. The applicant is convicted of any felony or misdemeanor which is classified as a sex or sex related offense, or has found to be in violation of the City's Zoning Ordinance, any violation of the City's • massage ordinance, or any violation of any other adult business ordinance of any other city, county, or state; 4. Individual Viewing Areas are being operated with more than one occupant at any one time, or are being maintained with holes, openings or other means of direct visual access between the interior space of two or more Individual Viewing Areas. For the purpose of this section, "Individual Viewing Area" shall mean a viewing area designed for single • occupancy; 5. Any person has been convicted of a sex related offense as a result of his or her activity on the premises of the Adult Oriented Business; or 6. Any person or persons has engaged in any Specified Sexual Activities on the premises. C. Revocation Notice. Upon determining that the grounds for Permit revo- cation exist, the City Manager shall furnish written notice of the proposed revocation to the permittee. Such notice shall summarize the • principal reasons for the proposed revocation, shall state that the permittee may appeal the decision within fifteen (15) calendar days of the posting or the post- marked date on the notice. The notice shall be delivered both by posting the notice at the location of the Adult Oriented Business and by sending the same, certified mail, -21- return receipt requested and postage pre -paid, to the permittee as that name and address appears on the Permit. Not later than fifteen (15) calendar days after the latter of the mailing or posting of the notice, the permittee may file an appeal of the • City Manager's determination with the City Clerk. If the appeal is filed within fifteen (15) calendar days of the mailing or posting of the notice referenced above, the appeal hearing shall be provided as contained in Subsection D below. D. Appeal. Any person aggrieved by a decision to revoke a Permit under this Chapter may file an appeal with the City Clerk within ten (10) days of the decision. The request for the appeal shall state the grounds upon which the appeal is based. Upon receipt, the City Clerk shall schedule an appeal hearing before the City Council or an appointed • hearing officer and shall provide written notice of the time, date and location of the hearing to the applicant. The hearing shall be held no later than 45 days from the date the request for the appeal is received by the City Clerk. The City Council shall determine whether grounds for revocation of the Adult Oriented Business Permit exists and shall render their decision at the conclusion of the hearing or upon recommendation of the hearing unless the applicant otherwise consents to a continuance. E. Reapplication after Revocation. is No person, corporation, partnership or member thereof or any other entity may obtain an Adult Oriented Business Permit for a business once its Permit has been revoked. See. 5.96.050 violation. -22- Any establishment operated, conducted or maintained contrary to the provisions of this Chapter is unlawful and a public nuisance, and the City Attor- ney may commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof in the manner provided by law, • and shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such Adult Oriented Business and restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this Chapter. Sec. 5.96.055 Existing Adult Businesses. Any lawfully existing and operating Adult Oriented Business which becomes a nonconforming use by reason of the adoption of this Chapter shall be deemed to have been • issued a Permit pursuant to this Chapter subject to the following: A. The nonconforming operation shall be brought into immediate full compliance with subsections (C),(H),(I),(J), and (S') of Section 5.96.025; and the nonconforming business shall be brought into compliance with subsections (B) , (D) , (N) , (0) , (P) , (Q) and (T) of Section 5.96.025 not later than one year from the date this Ordinance is adopted; and the nonconforming businesses shall be brought into compliance with subsections (E),(G),(L),(M),(N), (P),(R),(U) and (V) of Section 5.96.025 not later • than five years from the date of adoption of this Ordinance. Failure to comply with the requirements of this Chapter within the amortization periods provided in this section may subject the business to revocation of the Permit. Notwithstanding the above, any business legally existing and operating as of the date of adoption of this -23- • is Ordinance which does not comply with the zoning provisions found in Chapter 20.74 shall not be required to relocate and shall be considered nonconforming as to its location until such business is abandoned or otherwise terminated. Section 2: Chapter 5.30 of the Code of the City of Newport Beach is hereby repealed and of no further force or effect. Section 3: Should any section, subsection, clause, or provi- sion of this Ordinance for any reason be held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this Ordinance; it being hereby expressly declared that this Ordinance, and each section, subsection, sentence, clause and phrase hereof would have been prepared, proposed, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. SECTION 4: This ordinance was introduced at a regular meeting of the City Council of the City of Newport Beach, held on the 13th day of June, 1994, and adopted on the 27th day of June , 1994, by the following vote, to wit: ATTEST: AYES, COUNCILMEMBERS SANSONE, WATT, TURNER, HART, COX, DEBAY NOES, COUNCILMEMBERS NONE ABSENT MAYO -24- EV0121 t) v