The purpose and intent of this article are to regulate sexually-oriented businesses which, unless closely regulated, tend to have serious negative secondary effects on the community, which effects include, but are not limited to, the following: depreciation of property values and increase in vacancies in residential and commercial areas in the vicinity of sexually-oriented businesses; interference with residential property owners' enjoyment of their property when such property is located in the vicinity of sexually-oriented businesses as a result of increases in crime, litter, noise and vandalism; higher crime rates in the vicinity of sexually-oriented businesses; and blighting conditions such as low-level maintenance of commercial premises and parking lots, which thereby have a deleterious effect upon adjacent areas. Special regulation of these businesses is necessary to prevent these adverse effects and the blighting or degradation of the neighborhoods in the vicinity of the sexually-oriented businesses.
It is neither the intent nor the effect of this article to impose limitations or restrictions on the content of any communicative material. Similarly, it is neither the intent nor the effect of this article to restrict or deny access by adults to communication materials or to deny access by the distributors or exhibitors of sexually-oriented businesses to their intended market.
Nothing in this article 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 or obscene or harmful matter or the exhibition or public display thereof.
Notwithstanding any other provision of Title 13 of the "City of Costa Mesa Planning, Zoning and Development Code," the regulations set forth under this article shall apply specifically to sexually-oriented businesses. To the extent there are any inconsistencies between the provisions of sections 13-1 through 13-128 and the provisions of this Article 1, the provisions of this article shall govern.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-4, § 4, 2-2-98)
The following words and phrases shall, for the purposes of this article, be defined as follows, unless it is clearly apparent from the context that another meaning is intended.
Adult arcade.
An establishment where, for any form of consideration, one or more motion picture projectors, video cassette players, slide projectors or similar machines, for viewing by five or fewer persons each, are used on a regular and substantial basis to show films, motion pictures, video cassettes, slides or other photographic reproductions characterized by an emphasis on material depicting, describing or relating to "specified sexual activities" and/or "specified anatomical areas";
Adult bookstore/novelty store.
An establishment which on a regular and substantial basis sells or rents, or offers for sale or rental, for any form of consideration, of any one or more of the following:
(a) 
Books, magazines, periodicals or other printed matter, or photographs, films, sculptures, motion pictures, video cassettes, slides or other visual representations which are characterized by an emphasis on material depicting, describing or relating to "specified sexual activities" and/or "specified anatomical areas";
(b) 
Instruments, devices or paraphernalia which are designed for use in connection with "specified sexual activities."
Adult cabaret.
A nightclub, restaurant or similar establishment which, for any form of consideration, and on a regular and substantial basis, features live performances by topless and/or bottomless dancers, dance instructors, go-go dancers, exotic dancers, strippers or entertainers or similar performances characterized by an emphasis on "specified anatomical areas" and/or by "specified sexual activities."
Adult dance studio.
Any business or establishment which provides for members of the public a partner for dance where the partner, or the dance, is distinguished or characterized by an emphasis on matter involving, depicting, describing, or relating to "specified sexual activities" and/or "specified anatomical areas."
Adult hotel or motel.
A hotel or motel or similar business establishment offering public accommodations for any form of consideration which on a regular and substantial basis (1) provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by an emphasis on material depicting, describing or relating to "specified sexual activities" and/or "specified anatomical areas;" and/or (2) rents, leases, or lets any room for less than a six hour period, or rents, leases or lets any single room more than twice in a 24 hour period.
Adult motion picture theater.
An establishment where, for any form of consideration is used on a regular and substantial basis to show films, motion pictures, video cassettes, slides or similar photographic reproductions to more than five persons, and where such material is characterized by an emphasis on material depicting, describing or relating to "specified sexual activities" and/or "specified anatomical areas."
Adult theater.
A theater, concert hall, auditorium or similar establishment which, for any form of consideration, and on a regular and substantial basis, features live performances which are characterized by an emphasis on "specified anatomical areas" and/or "specified sexual activities."
Employee.
A person who works or performs in a sexually-oriented business regardless of whether or not the person is paid a salary, wage or other compensation by the business.
Establishment.
Establishment of a sexually-oriented business includes any of the following:
(a) 
The opening or commencement of any such business as a new business;
(b) 
The conversion of an existing business, whether or not a sexually-oriented business, to any of the sexually-oriented businesses defined herein;
(c) 
The addition of any of the sexually-oriented businesses defined herein to any other existing sexually-oriented business; or
(d) 
The relocation of any such sexually-oriented business.
Figure model.
Any person who, for pecuniary compensation, consideration, hire, or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculptured, photographed or otherwise depicted.
Modeling studio.
A business which provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who, for the purposes of sexual stimulation of patrons, display "specified anatomical areas" to be observed, sketched, photographed, painted, sculpted or otherwise depicted by persons paying such consideration. "Modeling studio" does not include schools maintained pursuant to standards set by the State Board of Education. "Modeling studio" further does not include a studio or similar facility owned, operated, or maintained by an individual artist or group of artists, and which does not provide, permit or make available "specified sexual activities."
Nudity or a state of nudity.
The showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of the covered genitals in a discernible turgid state.
Off-premises.
Any business where the primary services or entertainment are provided at a location or locations other than the premises of the subject business.
Operate a sexually-oriented business.
As used in this article, "operate a sexually-oriented business" means the supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of the conduct of activities of a sexually-oriented business or activities within a sexually-oriented business.
Person.
Any individual, firm, association, partnership, corporation, joint venture, trust or combination of individuals or persons.
Public park.
A park, playground, swimming pool, beach, pier, athletic field, or similar recreational facility within the city which is under the control, operation or management of the city.
Regular and substantial basis.
An activity or performance shall be deemed to be on a regular or substantial basis when it constitutes more than 25% of the total performance time, stock-in-trade, revenue, floor space, advertisement or similar element of the business. For purposes of this definition, revenue shall include gross revenue generated by the business, including revenue received by performers and others who work as independent contractors. For purposes of this definition, the floor space devoted to a regulated activity shall include all the area devoted to the activity, including but not limited to, display area, sales area, performance areas, viewing areas, dressing rooms, and all aisles and pathways between and within such areas.
Religious institution.
A structure which is used primarily for religious worship and related religious activities within the city.
Residential use.
Any lot located within the R1, R2-MD, R2-HD, R3, PDR-LD, PDR-MD, PDR-HD and PDR-NCM zones of the city.
School.
Any child care facility, or an institution of learning for minors, whether public or private, which offers instruction in those courses of study required by the California Education Code or which is maintained pursuant to standards set by the State Board of Education. This definition includes a nursery school, kindergarten, elementary school, junior high school, senior high school or any special institution of education within the city, but it does not include vocational or professional institution of higher education, including a community or junior college, college or university.
Semi-nude.
A state of dress in which clothing covers no more than the genitals, pubic region, buttocks, areola of the female breast, as well as portions of the body covered by supporting straps or devices. Semi-nude shall also include a person with partial clothing to include lingerie or similar clothing where "specified anatomical areas" are exposed.
Sexual encounter establishment.
An establishment, other than a hotel, motel or similar establishment offering public accommodations which, for any form of consideration, provides a place where two or more persons may congregate, associate or consort in connection with "specified sexual activities" and/or the exposure of "specified anatomical areas." This definition does not include an establishment where a medical practitioner, psychologist, psychiatrist or similar professional person licensed by the state engages in sexual therapy.
Sexually-oriented business.
A business which is conducted exclusively for the patronage of adults and as to which minors are specifically excluded from patronage, either by law and/or by the operators of such business, and which is characterized by an emphasis on "specified sexual activities" and/or "specified anatomical areas." Sexually-oriented also means and includes any adult arcade, adult bookstore/novelty store, adult cabaret, adult dance studio, adult hotel or motel, adult motion picture theater, adult theater, sexual encounter establishment, modeling studio, and any other business or establishment that, on a regular and substantial basis, offers its patrons entertainment or services which involve, depict, describe or relate to "specified sexual activities" and/or "specified anatomical areas."
Specified anatomical areas.
Includes any of the following:
(a) 
Less than completely and opaquely covered human genitals, pubic region, buttocks, anus or female breasts below a point immediately above the top of the areola; or
(b) 
Human male genitals in a discernibly turgid state, even if completely and opaquely covered; or
(c) 
Any device, costume or covering that simulates any of the body parts included in subsection (a) or (b) above.
Specified sexual activities.
Includes any of the following:
(a) 
The fondling or other erotic touching of human genitals, pubic region, buttocks, anus or female breasts;
(b) 
Sex acts, actual or simulated, including intercourse, oral copulation, anal intercourse, oral/anal copulation, bestiality, flagellation or torture in the context of a sexual relationship, and any of the following depicted sexually-oriented acts or conduct: anilingus, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty;
(c) 
Masturbation of human or animal, actual or simulated;
(d) 
Clearly depicted specified anatomical areas in a state of sexual arousal, stimulation or tumescence;
(e) 
Human or animal masturbation, sodomy, oral copulation, coitus, ejaculation; and
(f) 
Excretory functions, urination, menstruation, vaginal or anal irrigation as part of or in connection with any of the activities described in subdivisions (a) through (e) of this subsection.
Substantial enlargement.
An increase, over the lifetime of the business, of more than 10% or 100 square feet, whichever is less in the portion of the floor area of a business which is devoted to products, services or entertainment with an emphasis on material depicting, describing or relating to "specified anatomical areas" and/or "specified sexual activities."
Transfer of ownership or control of a sexually-oriented business.
"Transfer of ownership or control of a sexually-oriented business" shall mean and include any of the following:
(a) 
The sale, lease or sublease of the business; or
(b) 
The transfer of securities which constitute a controlling interest in the business, whether by sale, exchange or similar means; or
(c) 
The establishment of a trust, gift or other similar legal device which transfers ownership or control of the business, including the transfer by bequest or other operation of law upon the death of a person possessing the ownership or control.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-4, § 4, 2-2-98)
This article shall not apply to any of the following businesses or activities:
(a) 
Any massage establishment or massage practitioner holding a valid current license issued pursuant to the provisions of Title 9 of this Municipal Code.
(b) 
Any "off-premises" massage, escort or similar service holding a valid current license issued pursuant to the provisions of Title 9 of this Municipal Code.
(c) 
Any treatment administered in good faith in the course of the practice of any healing art or profession by any person holding a valid license or certificate issued by the state to practice any such art or profession under the provisions of the State Business and Professions Code or any other state law.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-4, § 4, 2-2-98)
The establishment of a sexually-oriented business shall be permitted only in the CL, C1, C2, C1-S or PDC Zones and shall be subject to the following regulations.
(a) 
A sexually-oriented business shall be subject to the following restrictions:
(1) 
Not within 500 feet of any area zoned for and/or lawfully operated as a residential use;
(2) 
With the exception of the PDC Zone, not within 1,000 feet of any other sexually-oriented business;
(3) 
Not within 1,000 feet of any school, public park, or religious institution;
(4) 
Not within any redevelopment area or the Newport Boulevard Specific Plan area.
(b) 
Each such sexually-oriented business must, prior to commencement or continuation or substantial enlargement of such business, first apply for and receive a sexually-oriented business license in accordance with the provisions in Chapter IV, Article 9 of the City of Costa Mesa Municipal Code.
(c) 
Each person who engages in or participates in any live performance involving, depicting, describing or relating to specified anatomical areas or specified sexual activities in a sexually-oriented business shall first apply for and receive a sexually-oriented business performer license.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-4, § 4, 2-2-98)
With the exception of sexually-oriented businesses located within the PDC Zone, the distance between any two sexually-oriented businesses shall be measured in a straight line, without regard to the boundaries of the city and to intervening structures, from the closest property line of the lot of each business. The distance between any sexually-oriented business and any residential use, religious institution, school, or public park shall also be measured in a straight line, without regard to the boundaries of the city and to intervening structures, from the nearest portion of the property line of the lot where such sexually-oriented business is conducted, to the nearest property line of a residential use, religious institution, school, or public park.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-4, § 4, 2-2-98)
In addition to all other offenses specified in this article, municipal code, county ordinances and state statutes, a sexually-oriented business shall be subject to the following restrictions:
(a) 
Notwithstanding that it is not a criminal offense for a person to operate or cause to be operated a sexually-oriented business to be in violation of Chapter IV, Article 9, Nudity Limitation, it is unlawful and a misdemeanor to establish, substantially enlarge or operate a sexually-oriented business within the city without first complying with the provisions of this article;
(b) 
It is unlawful and a misdemeanor to operate or cause to be operated a sexually-oriented business outside of the commercial zones specified in this article;
(c) 
It is unlawful and a misdemeanor to operate or cause to be operated a sexually-oriented business within 1,000 feet of any religious institution, school, or public park or within 500 feet of any area zoned for and/or lawfully operated as a residential use.
(d) 
With the exception of sexually-oriented businesses located within the PDC zone, it is unlawful and a misdemeanor to operate or cause to be operated a sexually-oriented business within 1,000 feet of another sexually-oriented business.
(e) 
With the exception of sexually-oriented businesses located within the PDC zone, it is unlawful and a misdemeanor to cause or permit the operation, establishment or maintenance of more than one sexually-oriented business within the same building, structure or portion thereof, or to cause the increase of floor area of any sexually-oriented business in any building, structure or portion thereof containing another sexually-oriented business.
(f) 
For those sexually-oriented businesses located within the PDC Zone, it is unlawful and a misdemeanor to cause or permit the operation, establishment or maintenance of more than one sexually-oriented business within the same leasing or occupied space or portion thereof containing another sexually-oriented business.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-4, § 4, 2-2-98)
With the exception of any violation of the nudity limitation under Chapter IV, Title 9, any firm, corporation or person, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this article shall be guilty of a misdemeanor, and any conviction thereof shall be punishable by a fine of not more than $1,000 or by imprisonment for not more than six months, or by both such fine and imprisonment. Notwithstanding any violation of the nudity limitation under Chapter IV, Title 9, any violation of the provisions of this article shall constitute a separate offense for each and every day during which such violation is committed or continued.
(Ord. No. 98-4, § 4, 2-2-98)
In addition to the penalties set forth above, any sexually-oriented business which is operating in violation of this article or any provision thereof or Chapter IV of Title 9, or any provision thereof, is hereby declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-4, § 4, 2-2-98)
(a) 
Any sexually-oriented business lawfully operating on February 22, 1994, that is in violation of this article, shall be deemed a nonconforming use. A nonconforming sexually-oriented business will be permitted to continue for a period of one year, with a possible one year extension, for a total time period not to exceed two years, unless sooner terminated for any reason or voluntarily discontinued for a period of 30 days or more. An application for a one year extension for extenuating circumstances may be granted by the planning commission only upon a convincing showing of extreme financial hardship by the sexually-oriented business. Such nonconforming sexually-oriented business shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use. If two or more sexually-oriented businesses are within 1,000 feet of one another and otherwise in a permissible location, the sexually-oriented business which was first established and has continually operated at the particular location is the conforming use and the later established business(es) is nonconforming.
(b) 
Any sexually-oriented business lawfully operating as a conforming use is not rendered a nonconforming use by the location, subsequent to the grant or renewal of a sexually-oriented business permit and/or license, of a school, public park, religious institution, or public building likely to be frequented by minors within 1,000 feet and/or residential use within 500 feet of the sexually-oriented business. This provision applies only to the renewal of a valid permit and/or license and does not apply when an application for a permit and/or license is submitted after a permit and/or license has expired or has been revoked.
(Ord. No. 97-11, § 2, 5-5-97; Ord. No. 98-4, § 4, 2-2-98)