HomeMy WebLinkAbout96-5 - Amending Chapters 5.28, 5.96 and 10.54 of the Code of the City of Newport Beach Pertaining to Public NudityORDINANCE NO. 96 -5
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, AMENDING
CHAPTERS 5.28, 5.96 AND 10.54 OF THE CODE OF
THE CITY OF NEWPORT BEACH PERTAINING TO
PUBLIC NUDITY
•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 through effective land use planning; and
WHEREAS, 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 providing nude entertainment cause secondary
impacts 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, in the vicinity
of the adult- oriented business; and
WHEREAS, in Barnes v. Glen Theaters. Inc. (1991) 501 U.S.
560, 111 S.Ct. 2456, the court found it to be constitutionally
permissible to prohibit public nudity, including public nudity
within adult- oriented business establishments, in part to protect
societal order and morality and in part to reduce or eliminate the
secondary effects associated with adult- oriented businesses which
permit public nudity which secondary effects include, but are not
limited to, the increase in prostitution, increase in sexual
assaults, and the attraction of other criminal activity; and
WHEREAS, prior to the adoption of this Ordinance, the City
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
WHEREAS, the City of Newport Beach believes the following
statements are true, in part based upon its understanding of the
experiences of cities which have adult- oriented businesses which
permit public nudity such as Austin, Texas; Biloxi, Mississippi;
Garden Grove, California; Indianapolis, Indiana; Los Angeles,
• California; and Phoenix, Arizona:
A. Crime rates are higher in areas surrounding adult -
oriented businesses than in other areas;
B. 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;
C. The image of the City of Newport Beach as a pleasant
and attractive place to reside will be adversely
affected by the existence of the secondary effects
caused by adult- oriented businesses which permit public
nudity;
D. The existence of adult - oriented businesses which permit
public nudity has been shown in some cities to reduce
the property values in those areas surrounding the
adult- oriented businesses;
• F. The City Council believers that prohibiting public
nudity will, to some extent, reduce those secondary
effects shown to be created, in part, by adult- oriented
businesses which provide or permit public nudity; 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 of Newport Beach believes the following
statements are true, in part, based upon its understanding of the
documents and judicial decisions in the public record:
A. Evidence indicates that some 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 in Section 5.96.010)
(collectively referred to as "Performers ") have been
found to engage in sexual activities 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; 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
entertainment; and
•WHEREAS, in prohibiting public nudity in adult- oriented
businesses, the City Council does not intend to proscribe the
communication of erotic messages or any other communicative
element or activity, but rather only to prohibit public nudity due
to the secondary impacts associated with such public nudity; and
WHEREAS, the City Council also finds, as a wholly independent
basis, that it has a substantial public interest in preserving
societal order and morality, and that such interest is furthered
by a prohibition on public nudity; and
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WHEREAS, while the City Council 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, in enacting this Ordinance, the City Council neither
supplants state obscenity legislation nor redefines the state
standard for obscene live conduct; and
WHEREAS, in enacting a nudity limitation, the City declares
that the limitation is a regulatory licensing provision and not a
criminal offense. The City has not. provided a criminal penalty
for a violation of the nudity limitation. The City adopts such a
limitation only as a condition of issuance and maintenance of live
entertainment and adult- oriented business permits issued pursuant
to the City Code; and
WHEREAS, the City Council finds that preventing the exchange
of money between entertainers and patrons also reduces the likeli-
hood of drug and sex transactions occurring in adult- oriented
• businesses; and
WHEREAS, requiring a six (6) foot separation between enter-
tainers and patrons reduces the likelihood that such persons will
negotiate narcotics sales and /or transact sexual favors within the
adult- oriented business.
NOW, THEREFORE, the City Council of the City of Newport Beach
HEREBY ORDAINS AS FOLLOWS:
Section 1: Section 5.28.010 of the Code of the City of
Newport Beach is hereby amended to read in its entirety as
follows:
5.28.010 Definitions.
Certain words or phrases used in this chapter are
defined as follows:
A. "Entertainment" means any act, play,
• burlesque show, revue, pantomime, cabaret, fashion or
style show, scene, dance, song, song and dance act, or
instrumental music participated in by one or more
employees, guests, customers or any other person or
persons.
1. The following is included in the term
"entertainment ": The presence of any performer,
dancer, employee, agent, model or other person in any
place of entertainment who engages in any Specified
Sexual Activity (as that team is defined in NBMC
9 5.96.010) not otherwise prohibited by local, State or
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Federal law, who exposes any Specified Anatomical Part
(as that term is defined in NBMC § 5.96.010) not
otherwise prohibited by local, State or Federal law, or
who performs in attire commonly referred to as pasties
or a g- string, or any other opaque covering which does
not expose the areola or nipples of the female breast,
and while covering the natal cleft and pubic area
covers less than one inch on either side of the entire
• length of the natal cleft and two inches across the
pubic area.
B. "Place of entertainment" means any business
establishment or concern open to members of the public,
with or without charge, in which entertainment is
offered or performed.
C. "Owner" or "permit holder" or "permittee"
means any of the following:
1. A sole proprietor;
2. All general partners of a partnership which
owns or operates a place of entertainment;
3. All persons who hold a controlling interest
in a corporation which owns or operates a place of
entertainment.
D. "City Manager" shall mean the City Manager
• for the City of Newport Beach or his or her designee.
E. "Individual viewing areas" shall mean viewing
areas such as booths, cubicles, rooms, or stalls where
live entertainment is performed and which are less than
one hundred fifty (150) square feet of floor space.
F. "Permit" shall mean any permit issued
pursuant to this chapter. (Ord. 95 -17 § 2 (part),
1995)
Section 2: Section 5.28.041 of the Code of the City of
Newport Beach is hereby amended in its entirety to read as
follows:
5.28.041 Additional Regulations.
The following regulations shall apply to all
entertainment described in Section 5.28.010(1)(a):
• A. No operator, entertainer, or employee of a
place of entertainment shall permit to be performed,
offer to perform, perform or allow patrons to perform
sexual intercourse, oral or anal copulation, fondling
or stimulation of human genitals, pubic region,
buttocks, or female breasts.
B. No operator, entertainer or employee of a
place of entertainment shall encourage or permit any
person upon the premises to touch, caress, or fondle
the breasts, buttocks, anus, or genitals of any other
person.
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C. If the place of entertainment is licensed to
serve alcoholic beverages, the permittee shall abide by
the rules and regulations set forth by the California
Department of Alcoholic Beverage: Control.
D. No person shall perform for patrons any
entertainment described in Section 5.28.010(1)(a)
• except upon a stage at least eighteen (18) inches above
the level of the floor which is separated by a distance
of at least six feet from the nearest area occupied by
patrons, and no patron shall be permitted within six
feet of the stage while the stage is occupied by an
entertainer. This subsection shall not apply to
individual viewing areas where the stage is completely
separated from the viewing area, floor to ceiling, by
plexiglass or other clear permanent barrier.
E. Stage or entertainment areas shall not be
open to view from outside the premises.
F. 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.
G. No exterior door or window shall be propped
or kept open at any time during hours of operation; any
exterior windows shall be covered with opaque covering
• at all times.
H. No person under the age of eighteen (18)
years shall be permitted within the premises at any
time during hours of operation.
I. The place of entertainment shall maintain
separate restroom facilities for male patrons and
employees and female patrons and employees. Male
patrons and employees shall be prohibited from using
the restrooms for females and female patrons and
employees shall be prohibited from using the restrooms
for males except to carry out the duties of repair,
maintenance and cleaning of the restroom facilities.
Restrooms shall not contain television monitors or
other motion picture or video projection recording or
reproduction equipment.
J. The premises shall provide separated dressing
room facilities for entertainers which are exclusively
• dedicated to the entertainers use.
K. The permittee shall provide an entrance /exit
to the premises for entertainers which is separate from
the entrance /exit used by patron.s.
L. No entertainer shall have physical contact
with any patron and no patron shall have physical
contact with any entertainer while on the premises.
M. All areas of the place of entertainment
accessible to patrons shall be illuminated at least to
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the extent of two foot - candies, minimally maintained
and evenly distributed at ground level.
N. Individual viewing areas shall be operated
and maintained without any hole or other opening or
means of direct communication or visual or physical
access between the interior space of two or more
individual viewing areas.
• O. No individual viewing area may be occupied by
more than one person at any one time.
P. All individual viewing areas shall be physi-
cally arranged in such a manner that the entire inte-
rior portion of the individual viewing area is visible
from aisles and public areas of the premises.
visibility into the individual viewing rooms shall not
be blocked or obscured by doors, curtains, partitions,
drapes, or any other obstruction whatsoever.
Q. No patron, guest or invitee shall directly
pay or give any gratuity to any performer, dancer,
employee, or model and no dancer, performer, employee
or model shall solicit any pay or gratuity from any
patron.
R. No owner or other person with managerial
control over an adult- oriented business (as that term
is defined in Newport Beach Municipal Code Section
• 5.96.010) which is not a theater, concert hall or
similar establishment primarily devoted to theatrical
performances, shall permit any person on the premises
of the adult- oriented business to engage in a live
showing of the human male or female genitals, pubic
area or buttocks with less than a fully opaque
covering, and /or the female breasts with less than a
fully opaque covering over any part of the nipple or
areola and /or covered male genitals in a discernibly
turgid state. This provision may not be complied with
by applying an opaque covering simulating the
appearance of the Specific Anatomical Part required to
be covered.
S. No owner or other person with managerial
control over an adult- oriented business (as that term
is defined in Newport Beach Municipal Code Section
5.96.010) which is a theater, concert hall or similar
establishment primarily devoted to theatrical
performances shall permit any person on the premises of
• the adult- oriented business to engage in a live showing
of the human male or female genitals, pubic area or
buttocks with less than a fully opaque covering and /or
the female breasts with less than a fully opaque
covering over any part of the nipple or areola and /or
covered male genitals in a discernibly turgid state.
This provision may not be complied with by applying an
opaque covering simulating the appearance of the
Specific Anatomical Part required to be covered.
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Section 3: Section 5.28.060 of the Code of the City of
Newport Beach is hereby amended to read in its entirety as
follows:
5.28.060 Revocation of Permit.
The City Manager may revoke a permit issued under
the provisions of this chapter for any of the following
• reasons:
A. The permittee has ceased to meet the
requirements for issuance of permit;
B. The applicant gave materially false,
fraudulent or misleading information on the
application;
C. Music or noise from the establishment for
which the permit was issued interferes with the peace
and quiet of the neighborhood;
D. The permit holder is convicted of a felony or
misdemeanor occurring upon, or relating to the premises
or lot upon which the place of entertainment is located
which offense is classified by the State as an offense
involving sexual crime against children, sexual abuse,
rape, distribution of obscene material or material
harmful to minors, prostitution or pandering,
including, but not necessarily limited to the violation
• of any crime requiring registration under California
Penal Code Section 290, or any violation of Penal Code
Sections 243.4, 261, 261.5, 264.1, 266, 266a through
266k, inclusive, 267, 286, 286.5, 288, 288a, 311
through 311.10, inclusive, 314, 315, 316 or 647;
E. If, on two or more occasions within a twelve
(12) months period, a person or persons has (have) been
convicted of a felony or misdemeanor for an offense set
forth in subsection (D) above as a result of such
person's activity on the premises or property on which
the place of entertainment is located, and the person
or persons were employees, contractors or agents of the
place of entertainment at the time the offenses were
committed;
F. If the permit holder or an employee has
knowingly allowed prostitution, or solicitation for
prostitution, on the premises; or
• G. The place of entertainment has been operated
in violation of any of the requirements of this
chapter.
Section 4: Section 5.28.110 of the Code of the City of
Newport Beach is hereby amended to read in its entirety as
follows:
5.28.110 Public Nuisance.
Notwithstanding any other provision of this Code,
a violation of the provisions of this chapter shall not
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constitute a misdemeanor or infraction, but shall be
enforced by appropriate action filed in the Superior
Court. A violation of this chapter, or any provision
of this chapter is hereby declared to constitute a
public nuisance and, as such, may be abated or enjoined
from further operation. Notwithstanding any other
provision of this Code, the sole remedy for any
violation of Section 5.28.045 sub. R and sub. S shall
• be through the revocation of the Entertainment Permit
issued pursuant to this chapter and the revocation of
the adult- oriented business permit issued pursuant to
Chapter 5.96.
Section 5: Section 5.96.010 of the Code of the City of
Newport Beach is hereby amended to read in its entirety as
follows:
5.96.010 Definitions.
As used in this chapter:
"Adult bookstore" means 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 activities or specified anatomical parts. (See
"adult- oriented business" for definition of regular and
substantial portion of its business."
"Adult cabaret" means 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 relating to
specified sexual activities or specified anatomical
parts.
"Adult hotel /motel ": means 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 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 twelve -hour period and /or rents, leases or
lets any room more than once in a twenty- four -hour
period and /or which advertises the availability of any
of the above.
"Adult model studio" means 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
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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 consideration, 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.
"Adult motion picture arcade" means 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.
"Adult- oriented business" means any business
establishment or concern which as a regular and
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. For
the purposes of this section, a business establishment
or concern has established the provision of products,
merchandise, services or entertainment characterized by
an emphasis on matters depicting, describing or
relating to Specified Sexual Activities or Specified
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 twenty -
five (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
characterized by an emphasis on Specified Sexual
Activity or Specified Anatomical Parts at least four
times in any month;
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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 depicting, describing, or relating to
Specified Sexual Activity or Specified Anatomical
Parts.'
• "Adult theater" means 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 distinguished or characterized
by their emphasis on matter depicting, describing, or
relating to specified sexual activities or specified
anatomical parts.
"Live art class" means 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
two classes; the instruction is offered indoors; an
instructor is present in the classroom while any
participants are present; and preregistration is
required at least twenty -four (24) hours in advance of
participation in the class.
• "Sexually oriented material" means 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 depicting, describing, or relating
to specific sexual activities or specified anatomical
parts.
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"Sexually oriented merchandise" means 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.
• Specified anatomical parts" means:
1 N Adult- Oriented Business shall be issued a permit or be
permitted to operate within the City if in the presentation of
sale, trade, display or presentation of services, products or
entertainment characterized by an emphasis on matters, depicting,
describing or relating to Specified Sexual Activity or Specified
Anatomical Parts is otherwise prohibited by local, state or
federal law.
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1. Less than completely and opaquely covered
human genitals; pubic region; buttocks, or female
breast below a point immediately above the top of the
areola; or
2. Human male genitals in a discernibly turgid
state, even if completely and opaquely covered.
• I'Specified sexual activities: means
1. Actual or simulated sexual intercourse, oral
copulation, anal intercourse, oral anal copulation,
bestiality, direct physical stimulation of unclothed
genitals, 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, coprophagy, coprophilia,
cunnilingus, fellatio, necrophilia, pederasty,
pedophilia, piquerism, sapphism, zooerastia; or
2. Clearly depicted human genitals in a state of
sexual stimulation, arousal or tumescence; or
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. The presence of any person who performs, or
appears in attire where specified anatomical parts are
either not opaquely covered or minimally covered with
devices commonly referred to as pasties and G- strings
or any other opaque covering, over the nipple and
areola of the female breast, and while covering the
natal cleft and pubic area covers less than one inch on
either side of the entire length of the natal cleft and
two inches across the pubic area.
isSection 6: Section 5.96.025 of the Code of the City of
Newport Beach is hereby amended to read in its entirety as
follows:
5.96.025 Findings /Requirements.
The City Manager shall issue an adult- oriented
business permit within fifteen (15) 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
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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.
D. The adult- oriented business shall not conduct
any massage, acupuncture, tattooing, acupressure,
fortune - telling or escort services on the premises.
E. The adult- oriented business provides a
security 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 eighteen (18)
if no liquor is served, or under the age of twenty -one
(21) if liquor is served.
• J. The adult- oriented business will not operate
between the hours of two a.m. and seven 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
years of a misdemeanor or felony classified by the
state as a sex - 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.
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L. The adult- oriented business provides separate
restroom facilities for male and female patrons. The
restrooms shall be free from sexually oriented
materials and sexually oriented 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 restroom
• 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
thirty -two (32) square feet of floor area with no
single dimension being greater than eight 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 more than
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
provision 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 articulated noise standard.
Q. No live entertainment, as that term is
defined in Section 5.28.010 of this Code, shall be
provided without first obtaining a permit pursuant to
Chapter 5.28 of this Code.
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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.
• S. No individual viewing area may be occupied by
more than one 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 or kept pen at any time during hours of
operation; any exterior windows shall be covered with
opaque covering at all times.
U. No owner or other person with managerial
control over an adult- oriented business (as that term
is defined in Newport Beach Municipal Code Section
5.96.010) which is not a theater, concert hall or
similar establishment primarily devoted to theatrical
performances, shall permit any person on the premises
of the adult- oriented business to engage in a live
showing of the human male or female genitals, pubic
area or buttocks with less than a fully opaque
covering, and /or the female breasts with less than a
• fully opaque covering over any part of the nipple or
areola and /or covered male genitals in a discernibly
turgid state. This provision may not be complied with
by applying an opaque covering simulating the
appearance of the Specific Anatomical Part required to
be covered.
V. No owner or other person with managerial
control over an adult- oriented business (as that term
is defined in Newport Beach Municipal Code Section
5.96.010) which is a theater, concert hall or similar
establishment primarily devoted to theatrical
performances shall permit any person on the premises of
the adult- oriented business to engage in a live showing
of the human male or female genitals, pubic area or
buttocks with less than a fully opaque covering and /or
the female breasts with less than a fully opaque
covering over any part of the nipple or areola and /or
covered male genitals in a discernibly turgid state.
This provision may not be complied with by applying an
• opaque covering simulating the appearance of the
Specific Anatomical Part required to be covered.
Section 7: Section 5.96.045 of the Code of the City of
Newport Beach is hereby amended to read in its entirety as
follows:
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
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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. A violation of or failure to comply with any
of the finding /requirements contained in Section
5.96.025 has occurred;
2. It is discovered that the application
contains incorrect, false or misleading information;
3. The applicant is convicted of any felony or
misdemeanor which is classified as a sex or sex related
offense, or has been 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. 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;
5. There has occurred on the premises a
violation of any provision of Section 5.28.041;
• C. Revocation Notice. Upon determining that the
grounds for permit revocation 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, return receipt. requested and postage
pre -paid, to the permittee as that name and address
appears on the permit. Not later than fifteen (15)
calendars 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 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 forty -five (45) days from
15
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. 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.
Section 8: Section 5.96.050 of the Code of the City of
Newport Beach is hereby amended to read in its entirety as
follows:
5.96.050 Violation.
Any establishment operated, conducted or
maintained contrary to the provisions of this chapter
is unlawful and a public nuisance, and the City
Attorney 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. Notwithstanding any other provision of this
Code, the sole remedy for any violation of Section
5.96.025 sub. U and sub. V shall be through the
revocation of the adult- oriented business permit issued
pursuant to this chapter and the revocation of the
Entertainment Permit issued pursuant to Chapter 5.28.
Section 9: Chapter 10.54 of the Code of the City of Newport
Beach is hereby amended to read in its entirety as follows:
10.54.010 Intent and Purpose.
The intent and purpose of this chapter is to
guarantee that the parks, playgrounds and beaches
owned, operated and maintained by the City of Newport
Beach are operated and maintained for the use, benefit,
recreation and enjoyment of all citizens and residents
of the City as well as to eliminate, to the greatest
• extent possible, the secondary effects associated with
the presentation of nudity in adult- oriented
establishments. The City Council finds that it is both
in the public interest and necessary to protect and
promote the public health, safety and welfare and that
said parks, playgrounds and beaches be utilized and
enjoyed by as many persons as possible; that maximum
utilization and enjoyment of said parks, playgrounds
and beaches can only be obtained through imposition of
regulations regarding activities thereon; the periods
of some persons utilizing said parks, playgrounds and
beaches by appearing thereon without clothing and with
owl
the private parts of their bodies exposed, unreasonably
interferes with the rights of all persons to use and
enjoy said parks, playgrounds and beaches by causing
many persons to leave and others not to use said parks,
playgrounds and beaches; that such conduct and behavior
imposes an extraordinarily unusual burden on City
employees charged with the maintenance of said parks,
playgrounds and beaches and public safety personnel who
are diverted from fulfilling their primary obligation
to protect the health, safety and welfare of the public
at large; that the presence of persons who are
unclothed and exposed to public view in or on public
rights -of -way, parks, playgrounds and beaches, or on
any private property open to public view from public
parks, playgrounds, beaches or other public ways tends
to discourage the use and enjoyment of said public
parks, playgrounds, beaches and public ways of the
City, and creates a nuisance and is offensive to
members of the public who wish to use and enjoy said
public parks, playgrounds, beaches and places and who
are unwillingly exposed to such conduct; that the
presentation of nude entertainment in adult- oriented
business establishments results in secondary effects
which include the proliferation of prostitution, the
increase in sexual assaults, and increase in other
crimes; that the prohibition of nudity in adult -
oriented business establishments tends to reduce the
existence of such secondary effects; and, based upon
the foregoing findings, this chapter will protect the
public health, safety and welfare.
•
10.54.020 Prohibition.
It shall be unlawful for any person to appear,
bathe, sunbathe, walk or be on any public park, play-
ground, beach, or in the water adjacent thereto, or on
any other public land, or on any private property open
to public view from any public beach, playground, park,
public place or public right -of -way in such a manner so
as to knowingly and intentionally:
A. Expose his or her genitals, pubic hair, natal
cleft, perineum, anal region or pubic hair region; or
B. Expose the nipples and /or areola of the
female breasts except as necessary while engaging in
the breast feeding of an infant under the age of two
years old; or
C. Expose any device, costume, or covering which
gives the appearance of or simulates the genitals,
pubic hair, natal cleft, perineum, anal region, nipple
and /or areola of the female breast or pubic hair
region.
10.54.030 Exemptions.
This chapter shall not apply to:
A. Children under the age of ten years;
17
B. Live theatrical performances performed in a
theater, concert hall, or other similar establishment
located on public land.
Section 10: That if any section, subsection, sentence,
clause or phrase of this Ordinance is for any reason held to be
invalid or unconstitutional, such decision shall not affect the
validity or constitutionality of the remaining portions of this
•Ordinance. The City Council hereby declares that it would have
passed this Ordinance and each section, subsection, clause or
phrase hereof, irrespective of the fact that any one to more
sections, subsections, sentences, clauses and phrases be declared
unconstitutional.
Section 11: The City Council had previously adopted
Ordinance 95 -15 establishing a non - criminal, regulatory licensing
requirement limiting total nudity in adult- oriented businesses.
This limitation amended Newport Beach Municipal Code Chapter
10.54. This Ordinance recodifies the aforementioned limitations
in Chapters 5.28 and 5.96. The City Council finds that this
Ordinance is merely declarative of existing law.
Section 12: The Mayor shall sign and the City Clerk shall
attest to the passage of this Ordinance. The City Clerk shall
cause the same to be published once in the official newspaper
within fifteen (15) days after its adoption.
This Ordinance was introduced at a
regular meeting of the City Council of the City of Newport Beach
•held on the 12th day of February , 1996, and adopted on
the 26th day of gebruaxy 1996, by the following vote,
to -wit:
l�
u
ATTEST:
& M. Nd,4"
CITY CLERK
AYES, COUNCILMEMBERSHEDGES, DEBAY, GLOVER,
ENMRDS, WATT, O'NEIL, COX
NOES, COUNCILMEMBERS NONE
ABSENT, COUNCILMEMBERS NONE
MAYOR
18