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5894ORDINANCE NO. 5894 AN ORDINANCE OF THE CITY OF ANAHEIM AMENDING VARIOUS SECTIONS OF THE ANAHEIM MUNICIPAL CODE RELATING TO EXPRESSIVE ACTIVITY AND SEX -ORIENTED BUSINESSES. WHEREAS, the City Council in its prior establishment of the prohibitions on sex - oriented businesses in the City of Anaheim declared this was necessary for the protection of the welfare of the people, as a result of the potential negative secondary effects of sex -oriented business, and does hereby reaffirm those findings and recitals contained in Ordinance Nos. 5399, 5568, 5569, 5646 and 5656 by this reference as if set forth in full; and WHEREAS, City Attorney, Planning Department and Police Department staff regularly review the provisions of Chapter 18.89 to determine if clarification or modification of its provisions is appropriate in view of changes in the law, and have been processing this amendment to Chapter 18.89 since September, 1998; and WHEREAS, on September 10, 1998, the United States Court of Appeals for the Ninth Circuit issued its opinion in Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097 ("Baby Tam"), holding that sexually -oriented businesses' licensing ordinances were required to note the provision of prompt judicial review for persons whose license or permit applications have been denied; and WHEREAS, in view of the holding in Baby Tam, the California Legislature passed Senate Bill 1165, Chaptered June 28, 1999, adding Section 1094.8 to the Code of Civil Procedure setting forth an expedited procedure for judicial review of decisions by a local public agency regarding the issuance, revocation, suspension or denial of a business or other permit involving expressive conduct protected by the First Amendment to the United States Constitution; and WHEREAS, the City Council by its Ordinance No. 5866, adopted June 17, 2003, has conformed existing language in the Anaheim Municipal Code to refer to the procedure set forth in Section 1094.8 of the Code of Civil Procedure; and WHEREAS, in Haas v. County of San Bernardino 27 Cal 4th 1017; 119 Cal. Rptr. 2d 341 (2002)("Haas"), the California Supreme Court, found that the County of San Bernardino's unilateral discretion to select and retain a hearing officer, when combined with the County's payment of the hearing officer, constituted an inherent deprivation of a licensee's due process right to an impartial hearing officer; and WHEREAS, the Supreme Court in Haas stated that agencies that appoint temporary administrative hearing officers must do so in a way that does not create the risk that favorable decisions will be rewarded with future remunerative work; and WHEREAS, the Haas court, in footnote 22 held that an attorney might be appointed to hear all cases arising during a designated period; and WHEREAS, no bias has been demonstrated as a result of utilization of previous provisions of the Anaheim Municipal Code relating to appointment of a hearing officer, and the hearings conducted have resulted in impartial consideration and recommendations by the persons so appointed; and WHEREAS, the City Council, by its Ordinance No. 5866, and in order to conform existing language in the Anaheim Municipal Code relating to selection of a hearing officer with the requirements set forth in the Haas decision, has created the office of City Hearing Officer to hear prescribed matters, including hearings relating to sex -oriented businesses, arising during a designated period without renewal, thereby ensuring that the appointment does not create the possibility that favorable decisions will be rewarded; and WHEREAS, the United States Supreme Court held that the City of Los Angeles may reasonably rely on its 1977 study to demonstrate that its present ban on multiple -use adult establishments serves its interests in reducing crime, City ofLosAngeles v. Alameda Books, Inc., 535 U.S. 425, 438; 152 L. Ed. 2d 670, 122 S. Ct. 1728 (2002)("Alameda Books"); and WHEREAS, pursuant to the Alameda Books decision, the City is "entitled to rely on the experience ... of other cities ... so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses;" and WHEREAS, prior to the adoption of this Ordinance, the City Council takes judicial notice of detailed studies prepared by other jurisdictions regarding the detrimental social and economic effects on persons and properties immediately surrounding established sex -oriented businesses, including the following: Phoenix, Arizona, May 25, 1979, "Adult Business Study," Tucson, Arizona, May 1, 1990, "Adult Entertainment Ordinance," Garden Grove, California, October 23, 1991, "The Relationship Between Crime and Adult Business Operations on Garden Grove Blvd.," Los Angeles, California, June 1977, "Study of the effects of the concentration ofadult entertainment establishments in the City of Los Angeles," Whittier, California, January 9, 1978, "Adult Businesses," Adams County, Colorado, 1990, "Adams County Nude Entertainment Study," 2 Manatee County, Florida, June 1987, "Adult Entertainment Business Study," St. Mary's, Georgia, July 1996, "The Evidence of Relationships Between Adult - Oriented Businesses and Community Crime and Disorder," Indianapolis, Indiana, 1984, "Adult Entertainment Businesses," Minneapolis, Minnesota, October 1980, "An Analysis of the Relationship Between Adult Entertainment Establishments, Crime and Housing Values," Minnesota Attorney General's Report, June 6, 1989, "Report of the Attorney General's Working Group on the Regulation of Sexually Oriented Businesses," St. Paul, Minnesota, 1983, "Adult Entertainment," New Hanover County, North Carolina, July 1989, "Regulation of Adult Entertainment Establishments," Las Vegas, Nevada, March 15, 1978, "Report," Cattaraugus County, New York, January 1998, "Adult Business Study," Islip, New York, September 23, 1980, "Study & Recommendations for Adult Entertainment Businesses," New York City, New York, November 1994, "Adult Entertainment Study," New York Times Square, April 1994, "Report on the Secondary Effects of the Concentration ofAdult Use Establishments," Cleveland, Ohio, April 24, 1977, "Report," Oklahoma City, Oklahoma, March 3, 1986, "Adult Entertainment Businesses," Oklahoma City, Oklahoma, 1989, "A Look At Successful Abatement of Adult Oriented Business Nuisances," Amarillo, Texas, September 12, 1977, "A Report On Zoning And Other Methods Of Regulating Adult Entertainment," Austin, Texas, May 19, 1986, "Report on Adult Oriented Businesses," Beaumont, Texas, September 14, 1982, "Regulation ofAdult Uses," 3 Cleburne, Texas, October 27, 1997, "Why and How Our City Organized a Joint County -Wide Sexually Oriented Task Force," Dallas, Texas, April 1997, "An Analysis of the Effects of SOBS on the Surrounding Neighborhoods," El Paso, Texas, September 26, 1986, "Effects ofAdult Entertainment Businesses on Residential Neighborhoods" Houston, Texas, January 7, 1997, "Sexually Oriented Business Ordinance Revision Committee Legislative Report," Newport News, Virginia, March 1996, "Adult Use Study," Bellevue, Washington, January 11, 1998, "Location ofAdult Entertainment Uses," Des Moines, Washington, August 1984, "Adult Use Study" Seattle, Washington, March 24, 1989, "Director's Report Proposed Land Use Code Amendment Adult Cabarets," St. Croix County, Wisconsin, September, 1993, "Regulation ofAdult Entertainment Establishments;" and WHEREAS, the City Council, in adopting this ordinance, takes legislative notice of the existence and content of the detailed studies prepared by other jurisdictions regarding the social and economic secondary effects on persons and properties surrounding established adult use facilities; and WHEREAS, there is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by sex -oriented businesses, including, but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property; and WHEREAS, the studies from other cities established by convincing evidence that sex - oriented businesses that are not regulated as to operating standards often have a deleterious effect on nearby businesses and residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values; and WHEREAS, the City Council takes judicial notice of the administrative record and of the Findings of Fact and Decisions issued by Hearing Officer Victor J. Kaleta on January 14, 1999, relating to the Revocation and Denial of Renewal of the sex -oriented business permit of the Flamingo Theater in Anaheim, issuing a comprehensive, detailed, 25 -page decision chronicling the C' evidence supporting his finding that (i) the Flamingo's regular and substantial violations of the City's sex -oriented business ordinance required revocation and nonrenewal of its permit; and (ii) listing nine specific violations of the prohibition against patron/entertainer sexual physical contact that occurred at the strip club over a 12 month period as established, in part, by video tape evidence showing such sexual physical contact; and WHEREAS, the Flamingo Theater's nude entertainers began providing a masturbatory service sometimes referred to as "lappers," which consisted of the following: after completely disrobing on stage, a nude entertainer would slip on thong underwear and a bra or bikini top and circulate through the audience selling "lappers;" once a patron agreed to purchase a "lapper," the entertainer would begin the service by rubbing her breasts, buttocks and near -nude genitals on the lap, legs, torso, chest and face of her patron; the entertainer would then mount the lap of her seated patron (hence the name "lapper") and, simulating intercourse, grind her near nude genitals directly on the genitals of her patron; and, as a 15 -year-old nude entertainer at the Flamingo Theater's establishment testified at the administrative hearing, the male patrons would even occasionally ejaculate (November 2, 1998, hearing transcript, 84:7-9; Administrative Record 91); and WHEREAS, as described in the October, 2003 memorandum from the Code Enforcement Division relating to recent inspections of sex -oriented businesses providing live entertainment in the City of Anaheim, lap dancing, which includes physical contact between entertainers clad in thong bikinis and patrons wherein, for a fee, the entertainers slide their buttocks up and down the patrons' genital area, simulating sexual intercourse, is a continuing practice at such establishments, and establishments providing sex -oriented entertainment and lap dancing are increasingly including "private" areas for patrons where more expensive lap dances are provided; and WHEREAS, as described in the October, 2003 memorandum from the Police Department relating to inspections from December, 2001 through June, 2003 by Special Operations Division Vice Investigators of sex -oriented businesses providing live entertainment in the City of Anaheim, the investigators, in an undercover capacity, saw female dancers, usually in g-string type bikinis or underwear performing "private dances," in which the dancer would rub her covered breast against the male customer, frequently rubbing the dancer's buttocks or groin against the male customer's groin in a back and forth motion while performing the "private dances;" and WHEREAS, the City Council finds that it is necessary and appropriate to clarify certain restrictions relating to sex -oriented businesses regulated by Chapter 18.89 of the Anaheim Municipal Code in light of the Court of Appeal's decisions in (Gammoh v. City of Anaheim (1999) 73 Cal.App. 4th 186; 86 Cal.Rptr.2d 194, modified 73 Cal.App. 4th 1264a ("Gammoh"); People V. Janini (1999) 89 Cal.Rptr. 2d 244 ("Janini"); and WHEREAS, in Janini the court reviewed misdemeanor convictions of seven female performers who worked as lap dancers at the Sahara Theater in Anaheim and two theater managers E accused of aiding and abetting them; and the performers danced nude on a stage and then, dressed in bikinis, and performed individual dances for patrons for money; and WHEREAS, the dancers at the Sahara Theater were convicted of municipal code violations and prostitution under Penal Code §647(b), based in part upon evidence obtained by Vice officers using hidden cameras to videotape the performers brushing their scantily -clad breasts, buttocks, and genitals up against the clothes bodies of their male patrons, and the women were convicted for violating the no -touching rule in the Anaheim Municipal Code; WHEREAS, the court of appeal in Janini reversed the convictions, finding that the municipal code violations were preempted by state law, and WHEREAS, in adoption of this Ordinance, the City Council is mindful of legal principles relating to regulation of sex -oriented businesses, and the City Council does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions, but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of sex -oriented businesses; and WHEREAS, the City Council has considered decisions ofthe United States Supreme Court regarding local regulation of sex -oriented businesses, including but not limited to: City of Erie v. Pap's A.M. ("Kandyland'), 529 U.S. 277,120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, Inc. 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596,107 L.Ed.2d 603 (1990); City ofRenton v. Playtime Theatre, Inc. 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); and Young v. American Mini Theaters, Inc. 427 U.S. 50,96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); decisions of the United States Court of Appeals for the Ninth Circuit, including but not limited to Diamond v. City of Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072 (2001); Isbell v. City ofSan Diego, 258 F.3d 1108 (9th Cir. 2001); Young v. City of Simi Valley; 216 F.3d 807 (9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000), cert. denied 531 U.S. 1191 (2001); Alameda Books, Inc. v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000), cert. granted 121 S.Ct. 1223 (2001); Baby Tam & Co., Inc. v. City of Las Vegas ("Baby Tam II') 199 F.3d 1003 (9th Cir. 2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied 511 U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053 (2000); several California cases, including but not limited to: Tily B., Inc. v. City of Newport Beach, 69 Cal.AppAth 1 (1999); City of National City v. Wiener, 3 CalAth 832 (1992), cert. denied 510 U.S. 824; People v. Superior Court (Lucero) 49 Cal.3d 14 (1989) ; and Cityof Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); and other federal cases, including but not limited to: Hang On, Inc. v. City ofArlington, 65 F.3d 1248 (5th Cir. 1995); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jackson, 973 F.2d 1255 (5th Cir. 1992), cert. denied 507 U.S. 1030 (1993); International Eateries v. Broward County, 941 F.2d 1157 (11 th Cir. 1991), cert. denied 503 U.S. 920 (1992); and Star Satellite, Inc. vs. City ofBilloxi,779 F.2d 1074 (5th Cir. 1986); and N WHEREAS, based upon its understanding of the experiences of other jurisdictions in the judicial decisions in the public record, including those set forth in the previous recital, based further in part upon the experiences of the City of Anaheim with sex -oriented businesses, including (i) the Flamingo Theater, as set forth in the administrative record and the decision of the Hearing Officer, (ii) the descriptions of the police of the activities in the Sahara Theater, including declarations and testimony relating to the Janini case and (iii) the October 2003, memoranda from the Anaheim Police Department and Code Enforcement Division, the City Council finds the following,: 1. Evidence indicates that some dancers, models, entertainers, performers, and other persons who publicly perform Specified Sexual Activities or publicly displayed Specified Anatomical parts in sex -oriented businesses (collectively referred to as "performers") have been found to engage in sexual activities with patrons of sex -oriented businesses on the site of the sex - oriented businesses; 2. Evidence has demonstrated that performers employed by sex -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; 3. Evidence indicates that performers at sex -oriented businesses have been found to engage in acts of prostitution with patrons of the establishments; 4. Evidence indicates that fully enclosed booths, individual viewing areas, as well as small rooms whose interiors cannot been seen from public areas of the establishment regularly have been found to be used as locations for engaging in unlawful sexual activity; 5. As a result of the above and the increase in incidents of HIV, AIDS, Hepatitis B and Hepatitis C which are sexually transmitted or blood borne diseases, the City has a substantial interest in adopting regulations that will reduce the possibility for the occurrence of prostitution and unlawful sex acts at sex -oriented businesses in order to protect the health, safety, and well-being of its citizens; 6. The City finds the foregoing to be relevant to the experience of Anaheim and the need to regulate the secondary effects of sex -oriented businesses within the community; and 7. The public health, safety, welfare, and morals of all persons in the City must be protected by the establishment of standards to diminish the possibility of infection of contagious diseases; and WHEREAS, the City Council finds, based upon observations of the City's Police Department and Code Enforcement Division staff, including (i) the Flamingo Theater, as set forth in the administrative record and the decision of the Hearing Officer, (ii) the descriptions of the police of the activities in the Sahara Theater, including declarations and testimony relating to the Janini 7 case and (iii) the October 2003, memoranda from the Anaheim Police Department and Code Enforcement Division, that enforcement of Chapter 18.89 is hampered by the following: 1. Sex -oriented businesses have created barriers of various types which prevent observation of activities of entertainers and patrons and interfere with enforcement of Chapter 18.89; 2. Sex -oriented businesses have created darkened areas with little illumination to establish secluded spaces which interfere with enforcement of Chapter 18.89 by preventing observation of activities of entertainers and patrons; and 3. Sex -oriented businesses continue to allow unregulated physical contact between dancers and patrons; and WHEREAS, the City Council is cognizant of the specific danger from the sexually transmitted disease AIDS, which is currently irreversible and fatal, and takes legislative notice of statistics provided by the United States Department of Health and Human Services, Public Health Service, Centers for Disease Control and Prevention Surveillance Report of AIDS cases reported through December, 2001, including information that Orange County has a total 5,925 cases, with 286 of those reported in the year 2000 and 299 reported in the year 2001, with 36 of those children under 13 years old; and takes further legislative notice of statistics provided by the California Department of Health Services, Office of AIDS, HIV/AIDS Epidemiology Branch ("CDHS") entitled California Top 10 Counties in AIDS Cases, that as of January, 2003, Orange County was one of California's top 10 counties in AIDS cases, and that as of January 31, 2003, a total of 6,226 cases had been reported in Orange County, with 3,255 deaths, leaving 2,971 residents of Orange County living with HIV/AIDS; and further takes judicial notice of the CDHS Acquired Immunodeficiency Syndrome (AIDS Only)AIDS Reporting Registry Surveillance Report for California - July 31, 2003, including information that as of July 31, 2003, an estimated 3,074 residents of Orange County were living with AIDS, an increase of 103 cases over the CDHS December 31, 2002 figures; and WHEREAS, the City is also concerned with preventing the spread of other sexually transmitted diseases such as syphilis, gonorrhea, chlamydia, hepatitis B, and hepatitis C, and takes judicial notice of the publication of the Centers for Disease Control and Prevention, Sexually Transmitted Disease Surveillance, 2001 (Atlanta, GA: U.S. Department of Health and Human Services, September 2002), which indicates, in part, that in 2001, 783,242 cases of genital Chlamydia trachomatis infection were reported to the CDC, an increase of 10.4% compared with the figures in 2000; that the gonorrhea rate in 2001(128.5 cases per 100,000 population) was similar to the rates in 2000 (129.0 cases per 100,000), but exceeds the 2010 objective of 19 cases per 100,000 population; that in 2001, syphillis cases reported to the CDC increased from 5,979 to 6,103, an increase of 2.1 %; and WHEREAS, the City Council has a reasonable basis to believe that the experiences of California and Orange County, as well as the experience in other counties outlined in the reports, as to these sexually transmitted or blood borne diseases are relevant to the experiences of Anaheim; and WHEREAS, the City Council recognizes the possible harmful effects on children and minors exposed to the effects of sex -oriented businesses and recognizes the need to enact regulations which will minimize and/or eliminate such exposure and takes legislative notice of the following: (i) the Penal Code provisions authorizing local governments to regulate matters that are harmful to minors, (such as Penal Code 313 et seq.) and (ii) the cases that recognize that protection of minors from sexually explicit materials is a compelling government interest, including Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Ca1.App. 4th 1075 (1995); and WHEREAS, the City Council also finds the establishment of operational standards for sex -oriented businesses is a legitimate and reasonable means of ensuring that: 1. Operators of and performers of sex -oriented businesses comply with the reasonable regulations of the Code; 2. The recognized adverse secondary impacts of a proposed sex -oriented business are mitigated; and 3. Sex -oriented business operators have specific guidelines with respect to the manner in which they can operate a sex -oriented business; and WHEREAS, while the City Council desires to protect the rights conferred by the United States Constitution to sex -oriented businesses, it does so in a manner that ensures the continued and orderly operation and diminishes, to the greatest extent feasible, those undesirable adverse secondary effects which the above mentioned studies have shown to be associated with the operation of sex -oriented businesses; and WHEREAS, operating standards are a legitimate and reasonable means of ensuring that sex -oriented businesses are conducted in a manner so as to minimize their adverse secondary effects and to help assure that such operators and businesses comply with reasonable regulations related to such requirements to minimize and control problems associated with such businesses and thereby protect the health, safety, and welfare of Anaheim residents, protect citizens from increased crime, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and businesses, and deter the spread of urban blight; and WHEREAS, the operational requirements contained in Chapter 18.89 and in this Ordinance do not unreasonably restrict the establishment or operation of sex -oriented businesses in the City of Anaheim; and M WHEREAS, the modifications in this ordinance are intended to clarify existing requirements, more narrowly tailor requirements to identified secondary impacts, and provide specificity; and to the extent that modifications may expand existing requirements, such expansions are fully justified based upon the evidence set forth in these recitals; and WHEREAS, to the extent that such modifications may expand existing requirements, the City Council wishes to provide a period of 180 days from the effective date of this ordinance for validly existing sex -oriented businesses to comply with the modified provisions, provided said establishments remain in compliance with the provisions in effect prior to the effective date of this ordinance, in order to provide notice to existing establishments, and an opportunity to comply with the expanded requirements of Chapter 18.89; and WHEREAS, the City Council has identified the provisions relating to licencing requirements for security guards, establishment of lighting standards, and the requirement that indoor areas accessible to patrons be open to public view (to the extent the latter modification may be said to expand the existing requirements that operations be open to view and visible from a manager's station) to expand existing requirements of Chapter 18.89; and WHEREAS, the City Council, in affirming and adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication, and takes note of the proliferation of adult material on the Internet, satellite television, direct television, CDs, DVDs, and that these various media provide alternative avenues of communication; and WHEREAS, the City Council also considers and relies on published decisions examining the proliferation of communications on the Internet, including Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d (1997) (the principal channel through which many Americans now transmit and receive sexually explicit communication is the Internet); Anheuser Busch v. Schmoke 101 F.3d 325, 329 (4`h Cir. 1996), cert. denied 520 U.S. 1204 (1997) (the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication); U.S. v. Hockings, 129 F.3d 1069 (91h Cir. 1997); see also U.S. v. Thomas, 74 F.3d 701(6 th Cir. 1996), cert. denied 519 U.S. 820 (recognizing the Internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions); and WHEREAS, the emergence of the Internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested persons in every community with a mere keystroke, and a sex -oriented business no longer has to be physically located in a city to be available in the community; and WHEREAS, the City Council has also determined that a closing hours requirement promotes the reduction of deleterious secondary effects from adult facilities and reasonably relies on prior court decisions on the need for closing hours including: Mitchell v. Comm. on Adult 10 Entertainment, 10 F.3d 123, 131-139 (3rd Cir. 1993); Lady J. Lingerie, Inc. v. City of Jacksonville, 973 F.Supp. 1428 (M.D. Fla. 1997) Lady J. Lingerie, Inc. vs. City of Jacksonville, 176 F.3d 1358 (11`h Cir. 1999); City of Colorado Springs v. 2354 Inc., 896 P.2d 272 (1995); and Center for Fair Public Policy v. Maricopa County, 2003 U.S. App. LEXIS 14918 (9' Cir. July 28, 2003); and WHEREAS, the City Council of the City of Anaheim has also determined that locational criteria alone do not adequately protect the health, safety, and general welfare of the citizens of the City of Anaheim and thus that certain requirements with respect to the operation of sex -oriented businesses are in the public interest; and WHEREAS, in addition to the findings in studies conducted in other cities regarding increases in crime rates and blighting of areas in which such businesses are located, the City Council also takes legislative notice of the facts recited in the case of Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986), Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), and Tily B., Inc. v. City of Newport Beach (1999) 69 Cal.App. 4th 1, regarding how live adult entertainment facilities result in secondary effects such as prostitution, drug dealing, and other law enforcement problems; and WHEREAS, in recognition of these negative secondary effects generated by live adult entertainment, a number of courts have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and direct payment and receipt of monies between performers and patrons at sex -oriented businesses that provide live entertainment, including but not limited to: Tily B., Inc. v. City of Newport Beach (1999) 69 Cal.App. 4th 1; Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); BSA, Inc. v. King County, 804 F.2d 1104; 1110-11 (9th Cir. 1986); Kev, Inc. v. Kitsap County 793 F.2d 1053 (9`h Cir. 1986); DLS, Inc. vs. City of Chattanooga, 894 F.Supp. 1140 (E.D.Tenn. 1995); Parker v. Whitfield County 463 S.E.2d 116 (Ga. 1995); and Hang On., Inc. v. City of Arlington 65 F.3d 1248 (5th Cir. 1996); and WHEREAS, the City Council believes that prohibiting physical contact between performers and patrons at sex -oriented businesses, requiring separate entrances for performers from those used for patrons, requiring separate restrooms for opposite sexes, and prohibiting performers from soliciting payment from patrons, are a reasonable and effective means of addressing the legitimate governmental interests of preventing prostitution, the spread of sexually transmitted diseases, and drug transactions; and WHEREAS, in considering appropriate operational regulations for sex -oriented businesses, the City Council finds that: 1. Preventing the direct exchange of money between performers and patrons also reduces the likelihood of drug and sex transactions occurring in sex -oriented businesses; and 11 2. Requiring separations between performers and patrons reduces the likelihood that such persons will negotiate narcotics sales and/or transact sexual favors within sex -oriented businesses; and WHEREAS, the City Council further finds that enclosed or concealed adult booths and dimly-lit areas within sex -oriented businesses greatly increase the potential for misuse of the premises, including unlawful conduct of a type which facilitates transmissions of disease; and that requiring all indoor areas to be open to view by management at all times and adequate lighting to be provided reduces the opportunity for, and therefore the incident of illegal conduct within sex - oriented businesses, and further facilitates the inspection of the interior of the premises thereof by law enforcement personnel, based on the following: 1. The City Council recognizes and relies on the findings set forth in the 1986 Attorney General's Report on Pornography, a copy of which is available for public review at the City Clerk's office, in support of this Ordinance, including, but not limited to, its recommendations that local governments ban certain features of video booths that facilitate carnal sexual encounters; 2. With respect to booths, these findings include the following: (i) the inside walls of the booth are typically covered with graffiti and messages, usually of a sexual nature and consisting of telephone numbers, names, requests and offers for sex acts, anatomical descriptions, and sketches; (ii) some booths also contain a charger used as an appointment schedule that is utilized to schedule appointments for sex acts that take place in that particular booth; (iii) many of these booths are equipped with a hole in the side wall between the booths to allow patrons to engage in anonymous sex including both oral and anal sex acts; (iv) inside the booths, the floors and walls are often wet and sticky with liquid or viscous substances, including semen, urine, feces, use prophylactics, gels, saliva, or alcoholic beverages; (v) the City concludes, based in part on the description of the illicit sexual activity as noted within the Attorney General's Report, that the presence of closed doors is likely to lead to the above described secondary effects; 3. The City Council finds that requiring that adult booths/individual viewing areas be configured in such a manner so that there is an unobstructed view by the manager and prohibiting closed, concealed, or obstructed adult booths that are occupied by no more than one person at a time reduces the secondary effects associated with adult booths; 4. The City Council reasonably relies on prior court decisions on the need for operational standards on the regulation of individual viewing area including Mitchell v. Comm. on Adult Entertainment, 10 F.3d 123, 131-139 (3rd Cir. 1993); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); City of Colorado Springs v. 2354, Inc. 896 P.2d 272 (1995); Acorn Investments v. City of Seattle, 887 F.2d 219 (9th Cir. 1989); Bamon Corp. v. City of Dayton 923 F.2d 470 (6th Cir. 1991); World Wide Video, Inc. v. Cityof Tukwila, 816 P.2d 18 (1991); 12 5. The provisions are further necessary to eliminate the masturbation and sexual activity that are known to occur in adult booths and which present significant health and safety concerns with respect to communicable diseases, including AIDS; and 6. The City Council takes further note of the Ninth Circuit's decision in Ellwest Stereo Theater, Inc. v. Wenner, 681 F.2d 1243 (9`' Cir. 1982) and its finding that there is no constitutional right to unobserved masturbation in a public place; and further finds that operational standards for adult booths are even more critical in an individual viewing area which reduces the buffer zone between the performer and patron during offstage performances; and WHEREAS, it is not the intent of the City Council of the City of Anaheim in enacting this Ordinance or any provision thereof to condone or legitimize the distribution of obscene material, and the City and its Council recognizes that State law prohibits the distribution of obscene materials and expect and encourages law enforcement officials to enforce State obscenity statutes against such illegal activities in Anaheim; and WHEREAS, the City Council does not intend to regulate in any area preempted by California law, including but not limited to, regulation of obscene speech, nor is it the intent of the City Council to preempt regulations of the State Department of Alcoholic Beverage Control ("ABC"); and WHEREAS, nothing in this Ordinance 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 or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof, and WHEREAS, this Ordinance is further justified by the fact that without these regulations the City will be prohibited from furthering its substantial governmental interest in protecting its residents from the aforementioned negative secondary effects caused by the unregulated operation of sex -oriented businesses; and WHEREAS, this ordinance is necessary for the preservation of the public peace, health and safety, which is justified by the fact that these operating standards need to be in place or the operation of existing facilities, or the siting of a new adult facility, could detrimentally impact the City's ability to protect the public from the negative secondary effects of an unregulated operation or under -regulated sex -oriented business(es); and WHEREAS, on July 9, 1996, the City Council approved Resolution No. 96R-123, effective August 8, 1996, approving the form application for a sex -oriented business, including a checklist of requirements for a completed application, to ensure that the determination as to completion of an application is ministerial; and 13 WHEREAS, the City Council wishes to revise existing provisions of Chapter 18.89 relating to the imposition of conditions on sex -oriented business Permits by the Hearing Officer to reflect the existing practice in the City of Anaheim, whereby the Hearing Officer's conditions are not discretionary, but require implementation and maintenance of characteristics of the proposed operation, such as the maximum number of patrons based on available parking, to ensure compliance with specific requirements in Chapter 18.89; and WHEREAS, the City Council declares that it would have adopted the locational and operational provisions of Chapter 18.89 even in the absence of the permit issuance provisions of that Chapter; and WHEREAS, the City Council recognizes the Illuminating Engineering Society of North America "(IESNA") has established a methodology for determining lighting power densities for various types of uses, establishing recommended weighted footcandle standards for individual spaces, which standards provide objective measures for lighting in various types of sex -oriented businesses; and WHEREAS, based upon IESNA standards, the City Council wishes to establish minimum footcandle requirements for sex -oriented businesses; and WHEREAS, copies of all studies, cases, memoranda and materials cited in the foregoing recitals, including memoranda from the City's Code Enforcement Division and Police Department and the administrative record of the proceedings relating to the revocation and denial of renewal of Flamingo Theater's sex -oriented business permit, and the record of the court proceedings in People v. Janini, which expressly detail the City's first hand experiences demonstrating secondary impacts in sex -oriented businesses, have been available to the City Council and made available during the Council's consideration of this ordinance; and WHEREAS, as provided in the severability clause of this ordinance, in the event of invalidation of any provision of Chapter 18.89, including the provisions relating to permit issuance, any sex -oriented business which operates in the City will be deemed to be operating subject to the requirements of Chapter 18.89, including, but not limited to, the locational and operational requirements, which would have been adopted independent of the permit issuance provisions; and WHEREAS, the continuing application of the locational and operational provisions of Chapter 18.89 is necessary in order to protect the public health, safety and welfare by providing a mechanism to address the harmful secondary effects associated with the establishment and operation of unregulated or underregulated sex -oriented business in the event the City's permit issuance procedures are invalidated by a court of competent jurisdiction. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM HEREBY ORDAINS AS FOLLOWS: 14 SECTION 1. That subsection .010 of Section 18.06.090 of Chapter 18.06 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: "010 Any application for a waiver or deviation from the provisions of this chapter relating to off-street parking requirements for any sex -oriented business, as defined in Chapter 18.89.020 of this Code, shall be determined by the City Hearing Officer appointed pursuant to the provisions of 1.12.110, following a duly noticed public hearing thereon held in accordance with the same procedure as set forth in subsection .040 of Section 18.89.030 of this Code which public hearing shall, upon the request of the applicant, be combined with the public hearing required for issuance of the sex -oriented business permit as required pursuant to said subsection .040 of Section 18.89.030." SECTION 2. That subsection 18.89.030.040 of Section 18.89.030 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended (to revise paragraphs .0401 and .0406) to read as follows: ".040 Processing of Application .0401 Within five (5) business days following the receipt of an application pursuant to this section, the License Collector shall determine whether said application contains all information required by the provisions of this chapter. If it is determined that said application is not complete, the owner (as defined in Section 18.89.020) shall be notified in writing within said five (5) day period that such application is not complete and the reasons therefor, including any additional information necessary to render the application complete. The owner shall be permitted to submit an amended application or provide all necessary information to render the application complete. Within five (5) business days following the receipt of any such amended application or supplemental information, the License Collector shall again determine whether said application is complete in accordance with the procedures set forth in this subsection. Upon a determination that said application is complete, either upon its initial submittal or upon receipt of any amended application or supplemental information, the owner shall be notified in writing by the License Collector that the application is complete. All notices required by this subsection shall be deemed given upon the date of either (i) deposit of such notice in the course of transmission with the United State Postal Service, first class mail, postage prepaid, and addressed to the owner, or (ii) personal service of such notice upon the owner. Upon determination that the application is complete, the License Collector shall immediately transmit such completed application to the City Hearing Officer appointed pursuant to the provisions of 1.12.100 (hereinafter the "Hearing 15 Officer") for processing in accordance with paragraphs .0402 through .0405, inclusive, of this subsection .040. .0402 The Hearing Officer shall conduct a public hearing upon said completed application. Notice of said public hearing shall be given in the manner provided for conditional use permits as set forth in Section 18.03.060 of this Code except that said public hearing shall be held within forty-five (45) calendar days following the date said application was deemed complete pursuant to paragraph .0401 above, unless the Owner, or the Owner's authorized representative, expressly agrees to an extension of such period of time. Notice of the time and place of the hearing shall be given to the applicant at least fifteen (15) calendar days in advance of the date set for the public hearing. Said public hearing shall be completed by the Hearing Officer on the same date on which it is scheduled and held unless continuance of said public hearing is expressly approved by the Owner, or the Owner's authorized representative, at or prior to the scheduled date of said public hearing. .0403 Within ten (10) calendar days following the completion of the public hearing specified in paragraph .0402 above, the Hearing Officer shall approve such application if it is determined that the requirements of this chapter have been met and if the application and evidence submitted show that the proposed sex -oriented business complies with the requirements of subsection 18.89.030.050 as hereinafter set forth; otherwise the application shall be denied. The Hearing Officer shall impose conditions upon such approval to assure compliance with the requirements of this chapter. In the event of denial of the application, the Hearing Officer shall specify in writing the grounds upon which the application is denied. Notice of the decision of the Hearing Officer shall be given in writing to the owner, and to any other person or entity expressly requesting notice thereof, in the same manner as provided for the giving of notices in paragraph .0401 above. The decision of the Hearing Officer shall also be immediately transmitted to the License Collector for issuance or denial of the permit. The decision of the Hearing Officer shall be deemed final notwithstanding any other provision of this Code to the contrary. .0404 Immediately upon receipt of a decision by the Hearing Officer approving or conditionally approving such application, the License Collector shall issue the sex -oriented business permit to the owner. Such permit shall be deemed subject to any conditions of approval imposed by the Hearing Officer pursuant to paragraph .0403. .0405 For purposes of any public hearing required pursuant to this chapter, the term "hearing officer" shall be deemed to refer to the City Hearing Officer. IV .0406 Notwithstanding anything herein to the contrary, when required, prompt judicial review shall be afforded as provided by subsection, 18.02.060.020 of this Code." SECTION 3. That subsection 18.89.030.050 of Section 18.89.030 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".050 Requirements for Sex -Oriented Businesses. It shall be unlawful for any person or entity to own, operate or conduct any sex -oriented business, or for any person to engage or participate in any specified sexual activities or display or expose any specified anatomical parts except in compliance with the requirements of this subsection .050 as hereinafter set forth. Notwithstanding the following requirements for location of a sex - oriented business, (i) any site for which a Sex -Oriented Business Permit has been issued by the City, which use has not been abandoned or discontinued for a continuous period of one hundred and eighty (180) days, or (ii) any site legally available as a potential location for a sex -oriented business as of October 28, 2003, shall remain available for such a business even if the site would otherwise be disqualified by commencement of a new use subsequent to that date, other than a site which is disqualified by the legal establishment of a sex -oriented business. .0501 The sex -oriented business shall be located in a zone permitting the proposed use, provided the premises shall be located outside the boundaries of any redevelopment area established by ordinance of the City of Anaheim. .0502 The sex -oriented business shall not be located within four hundred (400) feet of any residential zone or residential use, whether such residential zone or use is within or outside the corporate boundaries of the City of Anaheim. .0503 The sex -oriented business shall not be located within one thousand (1,000) feet of any lot upon which there is located any religious institution, public park, any public or private elementary, secondary, middle, junior high, or high school, whether such use is within or outside the corporate boundaries of the City of Anaheim. 0504 The sex -oriented business shall not be located: .01 south of Crescent Avenue if located west of Gilbert Street; or south of La Palm Avenue if located east of Gilbert Street; or 02 east of Jefferson Street. 17 03 (Deleted)" .0505 Not more than two (2) sex -oriented businesses shall be located within any circular area having a radius of two thousand five hundred (2,500) feet. Further, such businesses shall be located either (i) in contiguous building units sharing at least one common wall with another sex -oriented business, or (ii) upon contiguous parcels of property each of which parcels is exclusively devoted to use as a sex -oriented business, or (iii) at least one thousand (1,000) feet from any other sex -oriented business. .0506 For the purposes of this subsection .050, all distances shall be measured in a straight line, without regard to intervening structures or objects, from the nearest point of the premises where said sex -oriented business is conducted to the nearest property line of any lot zoned or used for residential uses other than a residential lot under resolution of intent to any nonresidential zone, or to the nearest property line of any lot upon which is located a religious institution, public park or school, or to the nearest point of the premises of any other sex -oriented business. The word "premises," for purposes of this Section 18.89.030, shall mean the building (if the sex -oriented business occupies the entire building), or separate portion of any building, used for a sex -oriented business. .0507 The sex -oriented business shall be conducted wholly within a building and shall not be located, in whole or in part, within any portable structure. .0508 At all times that the Sex -Oriented Business is open to the public, there must be present and available on the premises a person who is the on -duty Manager or on -duty Acting Manager of the Business responsible for operation of the Business who shall be so identified as the on -duty Manager or on duty Acting Manager by a badge bearing the word "MANAGER" in block capital letters not less than 1/4" in height worn in a conspicuous and clearly visible location on the chest, and who shall have on his or her person a valid, unrevoked Sex -Oriented Business Employee Identification Card issued pursuant to the provisions of Section 18.89.035. .0509 The sex -oriented business shall not conduct any massage, acupuncture, figure modeling, tattooing, acupressure or escort services and shall not allow such activities on the premises. .0510 Any sex -oriented business which allows customers to remain on the premises while viewing any live, filmed or recorded entertainment, or while using or consuming the products or services supplied on the premises, shall conform to the following requirements: 18 .01 At least one security guard shall be on duty outside the premises, patrolling the grounds and parking areas, at all times while the business is open. The security guard(s) shall be charged with preventing violations of law and enforcing compliance by patrons with the requirements of this chapter. Any security guard required by this subparagraph shall be uniformed in such manner so as to be readily identifiable as a security guard by the public. All security guards shall be licensed under the California State Private Security Services Act, Business and Professions Code Section 7580, et seq. No security guard required pursuant to this subparagraph shall act as a doorperson, ticket seller, ticket taker, or admittance person while acting as a security guard hereunder. .02 Landscaping shall conform to the standards established for the zone, except that, if the sex -oriented business is the sole use on a lot, no planting shall exceed thirty (30) inches in height, except trees with foliage not less than six (6) feet above the ground. .03 The entire exterior grounds, including the parking lot, shall be lighted sufficiently to permit the security personnel to observe activity on the grounds and within automobiles. .04 The premises within which the sex -oriented business is located shall provide sufficient sound -absorbing insulation so that noise generated inside said premises shall complies with the requirements of Section 6.70.010 of the Anaheim Municipal Code. .05 No exterior door or window on the premises shall be propped or kept open at any time while the business is open, and any exterior windows shall be covered with opaque covering at all times. .06 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. .07 All interior areas accessible to patrons shall be illuminated to the level established by resolution of the City Council for the type of use, based upon recommended standards established by the Illuminating Engineering Society of North America, a recognized technical authority on illumination, but in no event less than ten foot-candles, minimally maintained and evenly distributed at ground level. .08 It shall be the duty of the owner(s) and it shall also be the duty of all employees present on the premises to insure that the illumination 19 described above is maintained at all times that any patron is present on the premises. .0511 All indoor areas of the sex -oriented business accessible to the public within which patrons are permitted, except restrooms, shall be open to public view at all times. "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. .0512 Except as specifically provided in this chapter, the sex -oriented business shall comply with the zoning, parking, development and design standards applicable to the zone in which the business is located. .0513 No sex -oriented material or sex -oriented merchandise shall be displayed in such manner as to be visible from any location other than within the premises occupied by the sex -oriented business. .0514 No person under the age of eighteen (18) years shall be permitted within the premises at any time. .0515 The sex -oriented business shall not operate or be open between the hours of 2:00 a.m. and 9:00 a.m. .0516 The sex -oriented business shall provide and maintain separate restroom facilities for male patrons and employees and female patrons and employees. Male patrons and employees shall be prohibited from using the restroom(s) for females, and female patrons and employees shall be prohibited from using the restroom(s) for males, except to carry out duties of repair, maintenance and cleaning of the restroom facilities. The restrooms shall be free from all sex -oriented materials and sex -oriented merchandise. Restrooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment. The foregoing provisions of this paragraph .0516 shall not be applicable to a sex -oriented business which deals exclusively with sale or rental of merchandise which is not used or consumed on the premises, such as a sex -oriented bookstore, and which does not provide restroom facilities to its patrons or the general public. .0517 The location, configuration, size and appearance of the premises and the structure thereon, and the floor plan layout of the interior of the structure, including, if the Sex -Oriented Business provides live entertainment, the seating arrangement therein, shall be as shown on the site plan and floor plans approved in connection with approval of the Sex -Oriented Business Permit. No modification of said site plan and/or floor plans, including alteration in the configuration or location of a manager's station(s), which would interfere with enforcement of Chapter 18.89, 20 or obstruct the view of areas accessible to the public, shall be made unless the Owner first obtains a modification of the Sex -Oriented Business Permit in accordance with the procedures for obtaining a Sex -Oriented Business Permit set forth in this Section 18.89.030. No modification of said site plan and/or floor plans which would result in a violation of the provisions of this chapter shall be permitted. .0518 "Individual viewing area" shall mean a viewing area designed for occupancy by one person. Individual viewing areas ofthe sex -oriented business 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 (2) or more individual viewing areas. .0519 The following additional regulations shall pertain to sex -oriented businesses which provide more than one viewing area: .01 Upon application for a sex -oriented business permit, the application shall be accompanied by a diagram of the premises showing a plan thereof specifying the location of one or more manager's stations, the location of all overhead lighting fixtures and designating any portion of the premises in which patrons will not be permitted. A manager's station may not exceed thirty-two (32) square feet of floor area with no dimension greater than eight (8) feet. The diagram shall also designate the place at which the sex -oriented business permit and City business license will be conspicuously posted. A professionally prepared diagram in the nature of an engineer's or architect's blueprint shall not be required; however, each diagram shall be oriented to the north or to some designated street or object and shall be drawn to a designated scale with marked dimensions sufficient to show the various internal dimension of all areas of the interior of the premises to an accuracy of plus or minus six (6) inches. 02 (deleted) .03 (deleted) .04 It is the duty of the owner(s) to insure that at least one (1) employee is on duty and situated at each manager's station at all times that any patron is present inside the premises. .05 The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. If the premises has two (2) or more manager's stations designated, then the interior of the premises shall be configured in such a 21 manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose, excluding restrooms, from at least one (1) of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. .06 It shall be the duty of the owner(s) and it shall also be the duty of all employees present on the premises to insure that the view area specified in subsection .05 remains unobstructed by any doors, walls, persons, merchandise, display racks or other materials at all times and to insure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subparagraph .01 of this paragraph .0518. .07 No individual viewing area may be occupied by more than one (1) person at any one time. .08 (deleted) .09 (deleted) .0520 The following additional requirements shall pertain to Sex -Oriented Businesses providing live entertainment revealing or depicting Specified Anatomical Parts or involving Specified Sexual Activities: .01 No person shall perform, and no owner, operator, or manager of a Sex -Oriented Business shall permit, live entertainment revealing or depicting Specified Anatomical Parts or engaging in Specified Sexual Activities for patrons of a Sex -Oriented Business except where: (a) performed upon a stage located at least eighteen (18) inches above the level of the floor; and (b) a distance of at least six (6) feet, measured horizontally, is maintained between the nearest area occupied by patrons and the portion of the stage occupied by an entertainer, at all times during which such entertainer is revealing or depicting Specified Anatomical Parts or engaging in Specified Sexual Activities. (c) Notwithstanding any other provision of this chapter, any Sex -Oriented Business lawfully in existence and providing live entertainment revealing or depicting Specified Anatomical Parts upon a stage prior to July 20, 1993 (the "Legal Nonconforming Business"), which stage and the patron seating area therefor have been lawfully 22 in existence, without material modification thereto, since prior to October 5, 1993 (the "Preexisting Stage and Seating Area"), and which Preexisting Stage and Seating Area, or any portion thereof, must be reconstructed, reconfigured or modified to conform to the requirements of this subparagraph .01 (the "Required Remodeling"), and which Required Remodeling necessarily results in the reduction of usable patron seating area and the number of seats having a view of the stage, may reconfigure the usable patron seating area by the addition thereto of a replacement area and replacement number of patron seats not greater than the size of the area and number of patron seats lost as a result of the Required Remodeling. Nothing contained herein shall authorize an increase in the total available square footage of patron seating area or an increase in the total available number of patron seats having a view of the stage above the respective amounts which lawfully existed prior to the Required Remodeling. .02 The Sex -Oriented Business shall provide separate dressing room facilities for entertainers which are exclusively dedicated to the entertainers' use. .03 The Sex -Oriented Business shall provide an entrance/exit to the premises for entertainers which is separate from the entrance/exit used by patrons. .04 No patron, guest or invitee shall directly pay or give any gratuity to any entertainer who engages in any Specified Sexual Activities or displays any Specified Anatomical Parts in a Sex -Oriented Business and no such entertainer shall directly accept any pay or gratuity from any patron, guest or invitee of the Sex -Oriented Business. .05 No entertainer shall have physical contact with any patron, and no patron shall have physical contact with any entertainer, while on the premises which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft of the buttocks, perineum, anal region, or female breast with any part or area of such other person's body either before, during or after performances by such entertainer. .06 No waiter, waitress, entertainer or other person employed on the premises as an employee or as an independent contractor shall violate the provisions of Section 7.16.060 of the Anaheim Municipal Code while on the premises. 23 .07 Fixed rail(s) at least thirty (30) inches in height shall be maintained establishing the separations between entertainers and patrons required by this paragraph .0520. .08 The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose excluding restrooms. If the premises has two or more manager's stations designated, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose, excluding restrooms, from at least one of the manager's stations. The view required in this subsection must be by direct line of sight from the manager's station. .09 It shall be the duty of the Owner(s) and it shall also be the duty of all employees present on the premises to insure that the view area specified in subsection .08 remains unobstructed by any doors, walls, persons, merchandise, display racks or other materials at all times and to insure that no patron is permitted access to any area of the premises which has been designated as an area in which patrons will not be permitted in the application filed pursuant to subsection 18.89.030.030. .10 No entertainer shall be permitted to perform unless the entertainer has readily available on the premises a valid Sex -Oriented Business Employee Identification Card as required by Section 18.89.035. .11 The Owner shall keep on the premises available for inspection a copy of each entertainer's, and of each Manager and/or Acting Manager's Sex -Oriented Business Employee Identification Card. .0521 Signage shall conform to the standards applicable to the zone except that such signs (i) shall contain no sign copy other than the business name and the street address, and the notice required by subsection 18.8 9.040. 010 on the entrance door to the premises, (ii) shall contain no flashing lights, and (iii) shall contain no photographs, silhouettes, drawings, statues, monuments, sign shapes or sign projections, or other graphic representations, which depict the human body or anatomy, or any portion thereof, whether clothed or unclothed, including without limitation representations that depict "specified anatomical parts" or "specified sexual activities." No banners or other temporary signs shall be placed anywhere upon or within the premises in such manner as to be visible from any location other than within the premises occupied by the sex -oriented business. 24 .0522 The foregoing applicable requirements of this subsection .050 shall be deemed conditions of permit approval, and failure to comply with each and all of such requirements shall be grounds for (i) revocation of the sex -oriented business permit issued pursuant to this chapter and/or (ii) enforcement pursuant to Section 18.89. 100 of the Anaheim Municipal Code regardless of whether such business, person or entity has been issued a sex -oriented business permit. .0523 Submitting false or misleading information on the application shall constitute grounds for denial or revocation of the sex -oriented business permit." SECTION 4. That Section 18.89.050 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: "18.89.050 PERMIT DURATION. A sex -oriented business permit shall be valid from the date of permit approval as long as the applicant remains in compliance with the conditions of the permit and the provisions of 18.89." SECTION 5. That Section 18.89.060 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: "18.89.060 CHANGE OR ALTERATION OF BUSINESS. Any change or alteration in the location or nature of the Sex -Oriented Business, or any change of operation, including modification of site plan and/or floor plans, and including alteration in the configuration or location of a manager's station(s), which would interfere with enforcement of Chapter 18.89, or obstruct the view of areas accessible to the public will require a new application to be processed in the same manner as the original application. No change or alteration which would result in a violation of the provisions of this chapter shall be permitted. " SECTION 6. That subsections 18.89.080.020, 18.89.080.030 and 18.89.080.040 of Section 18.89.080 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same are hereby, amended to read as follows: ".020 The License Collector shall revoke a Sex -Oriented Business Permit when: 25 .0201 Any of the applicable requirements contained in Section 18.89.030 ceases to be satisfied, as set forth in paragraph .0206; , .0202 The application is discovered to contain incorrect, false or misleading information; .0203 The permit holder is convicted of a felony or misdemeanor occurring upon, or relating to the premises or lot upon which the Sex -Oriented Business 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; .0204 If, on two or more occasions within a twelve (12) month period, a person or persons has (have) been convicted of a felony or misdemeanor for an offense set forth in subsection .0203 above, or for violation of paragraph .0520, subparagraphs .01, .04, .05 and/or .06 of subsection 18.89.030.050, as a result of such person's activity on the premises or property on which the Sex -Oriented Business is located, and the person or persons were employees, contractors or agents of the Sex -Oriented Business at the time the offenses were committed; .0205 If the permit holder or an employee has knowingly allowed prostitution, or solicitation for prostitution, on the premises; or .0206 The Sex -Oriented Business has been operated in violation of any of the requirements of this Chapter and, (i) if the violation is of a continuous nature, the Business continues to be operated in violation of such provision for more than ten (10) days following the date written notice of such violation is mailed or delivered to the Owner, or (ii) if the violation is of a noncontinuous nature, two (2) or more additional violations of the same provision, or four (4) or more violations of any other of the provisions, of this Chapter occur (regardless of whether notice of each individual violation is given to Owner) within any twelve (12) month period. .0207 Notwithstanding the foregoing, a permit shall not be revoked for a violation of Section 18.89.030.050.0514 if the accused can show, by clear and convincing evidence, that he or she did not know, and could not reasonably have learned, that the person on the premises was under 18 years of age. .030 Upon determining that grounds for permit revocation exist, the License Collector shall furnish written notice of the proposed revocation to the permit holder. Such notice shall 26 summarize the principal reasons for the proposed revocation; shall state that the permit holder may request a hearing within fifteen (15) calendar days of the postmarkeddate on the notice; and shall be delivered both by posting the notice at the location of the Sex -Oriented Business and by sending the notice by certified mail, postage prepaid, addressed to the Permit holder as that name and address appear on the Permit. Within fifteen (15) calendar days after the later of the mailing or posting of the notice, the Permit holder may file a request for hearing with the License Collector. If the request for a hearing is filed within fifteen (15) calendar days of the mailing or posting of the notice referred to herein, the License Collector shall transmit the request to the City Hearing Officer to provide a hearing as set forth in Subsection 18.89.080.040 of this Chapter. .040 The Hearing Officer shall conduct a public hearing upon the proposed revocation of the Sex -Oriented Business Permit within forty-five (45) calendar days of the filing of such request by the permit holder. Notice of said public hearing shall be given in the manner provided for conditional use permits as set forth in Section 18.03.060 of this Code except that said public hearing shall be held within forty-five (45) calendar days following the filing of such request by the permit holder unless the Owner, or the Owner's authorized representative, expressly agrees to an extension of such period of time. At the hearing, the permit holder and the City shall be entitled to present relevant evidence, testify under oath and call witnesses who shall testify under oath. The Hearing Officer shall not be bound by the statutory rules of evidence in the hearing, except that hearsay evidence may not be the sole basis for the determination of the Hearing Officer." SECTION 7. That subsection .050 of Section 18.89.090 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".050 Within thirty (30) calendar days following the receipt of a completed application, the License Collector shall transmit the application and file to the City Hearing Officer. The Hearing Officer shall within twenty (20) calendar days thereafter conduct a hearing upon such application. Notice of such hearing shall be given in writing to the owner of the property upon which the business is located, the owner of the business, the holder of the business license for the business, and the License Collector. Such notice shall be given by first class mail, postage prepaid, and shall be deposited in the course of transmission with the United States Postal Service not less than ten (10) calendar days prior to the date of the hearing. Such notice shall specify the date, time, place and subject matter of the hearing." SECTION 8. That subsection .100 of Section 18.89.090 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: 27 ".100 No sex -oriented business which was rendered nonconforming by the adoption of this chapter 18.89 shall continue to be operated in the City of Anaheim without complying with all of the provisions of this chapter otherwise applicable to such sex -oriented business following expiration of the amortization period set forth in subsection .010 above or any extension thereof specifically approved for such sex -oriented business pursuant to this Section 18.89.090. .110 A sex -oriented business lawfully operating as a conforming use is not rendered a nonconforming use solely by reason of the subsequent establishment of a religious institution, public or private elementary, secondary, middle, junior high or high school, or park within one thousand (1,000) feet, or a residential zone or a residential use within four hundred (400) feet, of the sex -oriented business. .120 Notwithstanding any other provision of this Section 18.89.090 to the contrary, any sex -oriented business which either (i) was lawfully existing on July 20, 1993, and has continued to lawfully exist at the same location since such date, or (ii) obtained a sex -oriented business permit issued by the License Collector prior to the effective date of this subsection and has continued to comply with all terms and conditions of such permit and any renewal thereof, shall be deemed exempt from the locational requirements set forth in paragraphs .0501 through .0506, inclusive, of subsection .050 of Section 18.89.030 ofthis chapter (the "location requirements"), and from the signage requirements set forth in subparagraph .07 of paragraph .0510 of subsection .050 of Section 18.89.030 of this chapter (the "signage requirements"), and said use shall not be required to be discontinued or relocated because of such location or signage requirements. Any such existing legal nonconforming use shall comply with all of the other provisions of this chapter, except the location and signage requirements, within the time and manner otherwise provided in this Section 18.89.090. No such legal nonconforming use shall be (i) increased, enlarged, extended or expanded in size, area or seating, or (ii) changed, converted or altered from one type or category of sex -oriented business to a different type or category of sex -oriented business, as such types and categories of businesses are defined in Section 18.89.020 of this chapter, without complying with said location requirements. No signage of any such legal nonconforming use shall be increased, enlarged, extended, expanded, relocated, reconstructed, or in any way altered or changed (except for name changes), without such changes complying with said signage requirements." SECTION 9. That Section 18.89. 100 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: 28 "18.89.100 VIOLATIONS Failure to comply with any requirement of this Chapter shall constitute a violation of this Chapter. In addition to any other remedies provided by law or set forth in this Chapter, operation of a sex -oriented business by any person, including licensees and/or their agents and employees, independent contractors and/or volunteers without a valid Sex -Oriented Business Permit authorizing said operation shall be a misdemeanor punishable as set forth in Section 1.01.370 of this Code. Violations of this Chapter, other than a operation of a sex -oriented business without a permit, shall not constitute a misdemeanor or infraction, but may be enforced by any other remedy at law or equity. In addition to any other available remedy, 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 enj oinment 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 sex -oriented - oriented business and restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this chapter. Neither the provisions of this Section nor any other provision of Chapter 18.,89 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 or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof." SECTION 10. APPLICABILITY Notwithstanding anything herein to the contrary, the provisions of this ordinance relating to lighting standards, the requirement that security guards be licensed, and the requirement that indoor areas accessible to patrons be open to public view (to the extent the latter modification may be said to expand the existing requirements that operations be open to view and visible from a manager's station) shall not be applicable to existing establishments which have in place a valid Sex - Oriented Business Permit on the effective date of this ordinance ("Effective Date") for a period of one hundred and eighty (180) days from the Effective Date, provided such establishments continue to operate in compliance with the provisions of Chapter 18.89 which were in effect prior to the Effective Date. SECTION 11. SEVERABILITY The City Council of the City of Anaheim hereby declares that should any section, paragraph, sentence or word of this ordinance of the Code, hereby adopted, or of Chapter 18.89 of the Code, be declared for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this ordinance or the remaining portions of Chapter 18.89; it being the intent of the Council that it would have passed all other portions of this ordinance, and all other portions of Chapter 18.89, independent 29 of the elimination of any such portion as may be declared invalid. In the event a court of competent jurisdiction renders a decision facially invalidating the permit issuance process contained in this Chapter, any Sex -Oriented Business which operates in the City shall be deemed to be operating subject to the locational and operational requirements contained in Chapter 18.89, as the same may be amended from time to time. SECTION 12. SAVINGS CLAUSE This ordinance is declarative of existing law for reasons which include, without limitation, the existing provision establishing that the Hearing Officer's decision on a permit for a sex -oriented business is final, thereby expediting review (AMC 18.89.030.040.0403). Neither the adoption of this ordinance nor the repeal of any other ordinance of this City shall in any manner be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof, including violations committed prior to the effective date hereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments. THE FOREGOING ORDINANCE is approv and adopte the City Council of the City of Anaheim this 2 day of Dec., 2003 . MAYOR OF THFrCITY OF ANAHEIM ATTEST: PITY CLERK OF tHE CITY OF ANAHEIM 51570.11smannWovember 6, 2003 W STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, SHERYLL SCHROEDER, City Clerk of the City of Anaheim, do hereby certify that the foregoing Ordinance No. 5894 was introduced at a regular meeting of the City Council of the City of Anaheim, held on the 18th day of November, 2003, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 2nd day of December, 2003, by the following vote of the members thereof: AYES: MAYOR/COUNCIL MEMBERS: Pringle, Tait, Chavez, McCracken, Hernandez NOES: MAYOR/COUNCIL MEMBERS: None TEMP ABSENT: MAYOR/COUNCIL MEMBERS: None ABSTAINED: MAYOR/COUNCIL MEMBERS: None t Q CITY CLERK OF THE CITY OF ANAHEIM (SEAL)