Chapter 5.32 ADULT-ORIENTED BUSINESSES

Persons Eligible. The property owner, or authorized agent of the property owner, is eligible to request an adult-oriented business permit. A single adult-oriented business permit shall suffice for the operation of any adult-oriented business within the City.

The following information is required at the time an adult-oriented business permit is submitted to the Community Development Department:

A completed adult-oriented business permit application signed by the property owner or authorized representative;

A nonrefundable deposit or fee as set forth by ordinance or resolution of the City Council;

§ 5.32.040 Determination on Application.

A letter of justification describing the proposed project and explaining how it will comply with the findings/requirements contained in Section 5.32.050;

(4)

Information required for public hearings pursuant to Section 9.61.050 of this Code; and

(5)

All other information as required by the City adult-oriented business permit information sheet.

(Added by Ord. 03-06, 4/9/03; amended by Ord. 25-09, 6/17/2025)

Determination of Completeness. The City Manager or his or her designee shall, within seven days of receipt of an application for an adult-oriented business, determine whether the application contains all the information required by the provisions of Section 5.32.030. If it is determined that the application is not complete, the applicant shall be notified in writing within 10 business days of the date of receipt of the application that the application is not complete and the reasons therefor, including any additional information necessary to render the application complete. The applicant shall have 30 calendar days to submit additional information to render the application complete. Failure to do so within the 30 day period shall render the application null and void. Within five business days following the receipt of an amended application or supplemental information, the City Manager or his or her designee shall again determine whether the application is complete in accordance with the procedures set forth above. Evaluation and notification shall occur as provided above until such time as the application is found to be complete. Once the application is found to be complete, the applicant shall be notified within five business days of that fact. All notices required by this Chapter shall be deemed given upon the date they are either deposited in the United States mail, or the date upon which personal service of such notice is provided.

Issuance of Permit. The City Manager shall issue an adult-oriented business permit within 15 calendar days of receipt of a completed application if he or she finds that the application fully complies with the findings/locational and operational requirements contained in Section 5.32.150. The applicant shall be notified within five business days of the date the City Manager issues the adult-oriented business permit in the manner provided above. The decision of the City Manager to issue or deny a permit shall be final. Failure to render a decision prior to the expiration of that period shall result in the permit being deemed issued unless the applicant agrees in writing to an extension of that time.

(c)

Prompt Judicial Review. Any applicant whose permit has been denied pursuant to this Chapter has the opportunity to petition the court for review of the City's decision as provided by Code of Civil Procedure Section 1094.8.

(Added by Ord. 03-06, 4/9/03; amended by Ord. 25-09, 6/17/2025)

§ 5.32.050 Findings and Requirements.

The City Manager issue an adult-oriented business permit if it finds that:

The adult-oriented business shall be located in the City's Community Commercial/Vehicle (CC/V), Visitor/Recreation Commercial (V/RC), and/or Industrial/Business (I/B) zoning districts.[1]

[1]

Editor's Note: All measurements referenced in Section 5.32.050, subsections (b) through (d) inclusive, shall be measured in a straight line without regard to intervening objects or structures from the nearest point on the property line of residential structure, religious institution, public park or school to the closest point of the building or unit within the building proposed to house the adult-oriented business.

§ 5.32.080 Permits Nontransferable—Use Specific.

An adult-oriented business shall not be located within 300 feet of any residentially zoned property or any residential use properly approved by the City.

(c)

The adult-oriented business shall not be located within 300 feet of any lot upon which there is properly located a religious institution, public park or school.[2]

[2]

(d)

The adult-oriented business shall not be located within 300 feet of any lot upon which there is located another adult oriented business.

(e)

An adult-oriented business may not be operated in the same building, structure, or portion thereof, containing another adult-oriented business.

(f)

The adult-oriented business complies with the City's parking standards for the underlying use (i.e. an adult bookstore shall comply with the parking regulations for a bookstore). Where no City parking standards exist for a particular underlying use, the applicant shall prepare a parking study for the use in question. The study shall demonstrate that the adult-oriented business for which the applicant is seeking approval provides adequate parking.

(g)

The adult-oriented business shall not be located completely or partially within any mobile structure or pushcart.

(h)

The adult-oriented business shall not stage any special events, promotions, festivals, concerts or similar events which would increase the demand for parking beyond the approved number of spaces for the particular use.

(i)

The adult-oriented business shall not conduct any massage, acupressure, or escort services on the premises.

(j)

The adult-oriented business shall provide a security system that visually records and monitors all parking lot areas. All indoor areas of the adult-oriented business shall be open to public view at all times with the exception of restroom facilities. "Accessible to the public" shall include, but not be limited to, those areas which are only accessible to members of the public who pay a fee and/or join a private club or organization.

(k)

The adult-oriented business complies with the objective requirements of the City's sign regulations.

(l)

The adult-oriented business complies with the objective development and design requirements of the zone in which it is to be located.

(m)

The adult-oriented business shall not display any sexually-oriented material or sexually-oriented merchandise which would be visible from any location other than from within the adult-oriented business.

(n)

The adult-oriented business shall not allow admittance to any person under the age of 18 if no liquor is served, or under the age of 21 if liquor is served.

(o)

The adult-oriented business shall not operate between the hours of 10:00 p.m. and 7:00 a.m.

(p)

Neither the applicant, if an individual, nor any of the officers or general partners, if a corporation or partnership, of the adult-oriented business shall have been found guilty within the past two years of violating any of the provisions of an adult-oriented business permit or similar permit or license in any city, county, territory or state, or of any misdemeanor or felony classified by the state as a sex-related offence including but not limited to a violation of the following Penal Code Sections and their subparts and subsections: 220, 261, 262, 264, 264.1, 265, 266, (including 266a through 266k) 267, 286, 286.5, 288, 288a, 289, 647, 647b, 647d, 647.6.

(q)

The adult-oriented business will provide separate restroom facilities for male and female patrons. The restroom will be free from adult-oriented materials and adult-oriented merchandise. Only one person will be allowed in the restroom at any time unless otherwise required by law, in which case the adult-oriented business will employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours. The attendant will insure that no person of the opposite sex is permitted into the restroom, that not more than one person is permitted to enter a restroom stall, and, with the exception of urination and excretion, that no persons engage in any specified sexual activity in the public portion of the restroom.

(r)

The interior of the adult-oriented business will be configured such that there is an unobstructed view, by use of the naked eye, and unaided by video, closed circuit cameras or any other means, of every public area of the premises, including, but not limited to, the interior of all individual viewing areas, from a manager's station which is no larger than 32 square feet of floor area with no single dimension being greater than eight feet and located in a public portion of the establishment. No public area, including, but not limited to, the interior of any individual viewing area, will be obscured by any door, curtain, wall, two-way mirror, or other device which would prohibit a person from seeing into the interior of the individual viewing area, solely with the use of the naked eye and unaided by video, closed circuit cameras or any other means, from the manager's station. A manager will be stationed in the manager's station at all times the business is in operation or open to the public in order to enforce all rules and regulations. No individual viewing area will be designated or operated to permit occupancy of more than one person at any one time.

(s)

All areas of adult-oriented businesses shall be illuminated at a minimum of the following foot candles, minimally maintained and equally distributed at ground level:

Book Stores	20 foot candles
Retail Establishments (other than those listed herein)	20 foot candles
Theaters (except during performances at which time lighting shall be at least 1.25 foot candles)	5 foot candles
Cabarets, Restaurants, etc.	5 foot candles
Motion Picture Arcade	10 foot candles

(t)

The individual viewing areas of the adult-oriented business shall be operated and maintained with no holes, openings or other means of direct visual or physical access between the interior space of two or more individual viewing areas.

(u)

A traffic study has been prepared for the adult-oriented business in conformance with the City's traffic study guidelines. The applicant shall comply with the recommendations of the traffic study necessary to ensure the adult oriented business project does not cause the streets, highways, or arterials to exceed their approved level of service as that level of service is contained in the circulation element of the City's General Plan. All required fees and improvements shall be made conditions of project approval.

(v)

The adult-oriented business shall comply with the noise element of the General Plan. Interior and Exterior Noise Standards and any mitigation measures necessary to reduce the project's noise impacts to the City's articulated noise standard.

(w)

The adult-oriented business shall comply with all building and construction standards of the Uniform Building Code, Title 8 of this Code, Title 24 of the California Code of Regulations, and all other Federal, State and City-adopted standards for the specific use.

(x)

Live entertainment will only be performed either: (1) on a stage raised at least 18 inches above the floor and separated from patrons by a fixed rail at least 30 inches in height placed at a distance of not less than six feet around the perimeter of the stage; or (2) in a location other than on a stage such that no portion of the performer is, at any time within six feet of any patron. This provision will not apply to an individual viewing area where the performer is completely separated from the area in which the performer is viewed by an individual by a permanent, floor to ceiling solid barrier which completely encases the performer.

(y)

No patron will directly pay or give any gratuity to any performer, and no performer will accept any direct payment from any patron. For the purposes of this section, the phrase "directly pay" shall mean the person to person transfer of the gratuity. This section shall not prohibit the establishment of a non-human gratuity receptacle placed at least six feet from the stage or area occupied by the performer.

(z)

No performer will intentionally touch, fondle or caress (herein "touch") any patron of the adult oriented business and no patron shall touch any performer as the terms touch, fondle or caress are defined in Kev, Inc. v. County of Kitsap (9th cir.) 793 F.2d 1053. This prohibition applies to touching accomplished between any part of the body of a patron and performer, and regardless of if the touching occurs through clothing.

(aa)

At least one security guard will be on duty outside the premises, patrolling the grounds at all times the business is open to the public. The security guard shall be charged with preventing violations of law and enforcing the provisions of this chapter. All security guards will be uniformed so as to be readily identifiable as a security guard by the public. No person acting as a security guard shall act as a doorman, ticket taker or seller, or perform any other function while acting as a security guard. For all adult-oriented businesses providing live entertainment, an additional security guard will be required with each increase in maximum occupancy of 50 persons. All security guards shall be licensed under the California State Private Security Services Act. Business and Professions Code Section 7580 et seq.

(bb)

Public nudity will be prohibited on the premises at all times. For the purposes of this Section, the term "public nudity" shall mean appearing in a state such that the individual is clothed in less than pasties and a G-string. The phrase "G-string" shall mean an article of clothing that opaquely covers the buttocks at least one inch on either side of the natal cleft and covers the entirety of the genitalia and pubis. The term "pasties" shall mean an article of clothing that opaquely covers the nipple and areola of the female breast and is not designed to nor appears to look like the nipple and/or areola of the female breast.

(cc)

A person who has managerial control over the daily operation of the adult-oriented business shall inform each employee of the business of the requirements imposed under this Chapter.

(Added by Ord. 03-06, 4/9/03; amended by Ord. 25-09, 6/17/2025)

No adult-oriented business permit may be sold, transferred, or assigned by any permittee or by operation of law, to any other person, group, partnership, corporation or any other entity. Any such sale, transfer or assignment or attempted sale, transfer or assignment shall be deemed to constitute a voluntary surrender of the permit and the permit shall be thereafter null and void. An adult-oriented business permit held by a corporation or partnership is subject to the same rules of transferability as contained above. Any change in the nature or composition of the adult-oriented business from one element of an adult-oriented business to another element of an adult-oriented business or any increase of 10% or more of the floor area of the adult-oriented business shall also render the permit null and void. An adult-oriented business permit shall only be valid for the exact location specified on the permit.

(Added by Ord. 03-06, 4/9/03; amended by Ord. 25-09, 6/17/2025)

§ 5.32.090 Enforcement and Revocation.

Inspections. Due to the potential harm associated with the secondary effects found to be created by adult-oriented businesses, the permittee shall permit officers of the City of Dana Point, the County of Orange, and each of their authorized representatives to conduct unscheduled inspections of the premises of the adult-oriented business for the purpose of ensuring compliance with the law at any time the adult-oriented business is open for business or occupied.

Revocation Grounds. The Director of Community Development may revoke an adult-oriented business permit when he or she discovers that any of the following have occurred:

Any of the findings and requirements contained in Section 5.32.050 above ceases to be satisfied;

The application contains incorrect, false or misleading information;

"Adult Entertainment Business."

The applicant, and/or any of the officers or general partners, if a corporation or partnership, of the adult-oriented business has been found guilty of violating any of the provisions of an adult-oriented business permit or similar permit or license in any city, county, territory or state, or of any misdemeanor or felony classified by the state as a sex-related offense, including, but not limited to, a violation of the following Penal Code Sections and their subparts and subsections: 220, 261, 262, 264, 264.1, 265, 266, (including 266a through 266k) 267, 286, 286.5, 288, 288a, 289, 647, 647b, 647d, 647.6.

(4)

Any person has been convicted of a sex-related offense as a result of his or her activity on the premises of the adult-oriented business.

(c)

Revocation Notice. Upon determining that the grounds for permit revocation exist, the Director of Community Development shall furnish written notice of the proposed revocation to the permittee. Such notice shall summarize the principal reasons for the proposed revocation, shall state that the permittee may appeal the decision within 15 calendar days of the posting or the post-marked date on the notice. The notice shall be delivered both by posting the notice at the location of the adult-oriented business and by sending the same, certified mail, return receipt requested and postage pre-paid, to the permittee as that name and address appears on the permit. Not later than 15 calendar days after the latter of the mailing or posting of the notice, the permittee may file an appeal of the Director of Community Development's determination with the City Clerk. If the appeal is filed within 15 calendar days of the mailing or posting of the notice referenced above, the appeal hearing shall be provided as contained in subsection (d) of this Section.

(d)

Appeal. Upon receipt of a written appeal request, the City Clerk shall schedule an appeal to be heard before the City Council or, if determined appropriate by the City Manager, a Hearing Officer, within 30 calendar days of receipt of such request. Notice of the appeal hearing shall be provided in the manner required under Section 9.61.110 of this Code. Notice of the time and place of the hearing shall be sent to the permittee via certified mail, return receipt requested and postage prepaid at least 15 calendar days in advance of the date set for the hearing. At the hearing, the permittee and the City shall be entitled to present relevant evidence, testify under oath, and call witnesses who shall testify under oath. The City Council, or Hearing Officer, as applicable, shall not be bound by the traditional rules of evidence in a hearing, except that hearsay evidence may not be the sole basis for the decision of the City Council or the Hearing Officer, as applicable. The City Council or the Hearing Officer, as applicable, may continue the hearing as it deems necessary. Within 15 calendar days after the conclusion of the hearing, the City Council or the Hearing Officer shall rule on the appeal.

(e)

Rule Application After Revocation. No person, corporation, partnership or member thereof or any other entity may obtain an adult-oriented business permit within two years of the date its permit has been revoked.

(f)

Maintenance of Status Quo. The status quo shall be maintained pending conclusion of the revocation hearing. If a judicial action is commenced challenging the revocation, the status quo shall be maintained until such time as a judicial decision is rendered from the court in which the action is filed.

(Added by Ord. 03-06, 4/9/03; amended by Ord. 25-09, 6/17/2025)

§ 5.32.100 Violation—Penalty.

Any establishment operated, conducted or maintained contrary to the provisions of this Chapter is unlawful and a public nuisance, and the City Attorney may commence an action or actions, proceeding or proceedings for the abatement, removal and enjoinment thereof in the manner provided by law, and/or institute any proceeding to revoke or suspend any and all permits issued to the adult-oriented business and/or shall take such other steps and shall apply to such court or courts as may have jurisdiction to grant such relief as will abate or remove such adult-oriented business and restrain and enjoin any person from operating, conducting or maintaining such an establishment contrary to the provisions of this Chapter.

(Added by Ord. 03-06, 4/9/03; amended by Ord. 25-09, 6/17/2025)

§ 5.32.110 Definitions.

The following terms shall have the definitions ascribed below:

"Adult Bookstore."

Any establishment, which as a regular and substantial course of conduct, displays and/or distributes sexually oriented merchandise, books, periodicals, magazines, photographs, drawings, sculptures, motion pictures, videos, slides, films, or other written, oral or visual representations which are distinguished or characterized by an emphasis on a matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

"Adult Cabaret."

A nightclub, bar, lounge, restaurant or similar establishment or concern which features as a regular and substantial course of conduct, any type of live entertainment, films, motion pictures, videos, slides, other photographic reproductions, or other oral, written, or visual representations which are characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

Any business establishment or concern which as a regular and substantial course of conduct performs as an adult bookstore, adult theater, adult motion picture arcade, adult cabaret, stripper, adult model studio, adult motel/hotel; or any other business establishment or concern which as a regular and substantial course of conduct offers to its patrons products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts. "Adult entertainment business" does not include those uses or activities, the regulation of which is preempted by State law. "Adult entertainment business" shall also include any business establishment or concern which, as a regular and substantial course of conduct provides or allows performers, models, actors, actresses, or employees to appear in any place in lingerie or similar attire which does not opaquely cover specified anatomical parts. For the purposes of this Chapter, a business establishment or concern has established the provision of products, merchandise, services or entertainment characterized by an emphasis on matters depicting, describing or relating to specified sexual activities or specified anatomical parts as a regular and substantial course of conduct when one or more of the following conditions exist:

The area devoted to sexually-oriented merchandise and/or sexually-oriented material exceeds more than 25% of the total display area or floor space area open to the public;

The business establishment or concern presents any type of live entertainment which is characterized by an emphasis on specified sexual activity or specified anatomical parts on any 10 or more days in a 30-consecutive-day period;

"Adult Mini-Motion Picture Theater."

20% of the businesses revenues are derived from the provisions of services or merchandise characterized by an emphasis on specified sexual activity or specified anatomical parts.

"Adult Hotel/Motel."

A hotel or motel, which as a regular and substantial course of conduct provides to its patrons, through the provision of rooms equipped with closed-circuit television or other medium, material which is distinguished or characterized by the emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts and which rents, leases, or lets any room for less than a 12-hour period and/or rents, leases or lets any room more than once in a 24-hour period and which advertises the availability of any of the above.

A business establishment or concern with one or more viewing rooms with the capacity of more than five, but less that 50 persons, where, for any form of consideration, films, motions pictures, video cassettes, slides, computer generated or displayed images or similar graphic reproductions are shown and material whose dominant or predominant character and theme is the depiction of specified sexual activities or specified anatomical areas for observation is shown on any 10 or more days in a 30-consecutive-day period.

"Adult Model Studio."

Any premises where as a regular and substantial course of conduct, there is furnished, provided or procured a figure model or models who pose in any manner which is characterized by its emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical parts for the purpose of being observed or viewed by any person or being sketched, painted, drawn, sculptured, photographed, filmed, or videotaped before any person who pays a fee, or any other thing of value, as a consideration, compensation, or gratuity for the right or opportunity to so observe the model or remain on the premises. "Adult model studio" shall not include any live art class or any studio or classroom which is operated by any public agency, or any private educational institution authorized to issue and confer a diploma or degree under Section 94300 et seq., of the Education Code.

"Adult Motion Picture Arcade."

Any business establishment or concern which as a regular and substantial course of conduct provides, for a fee, the use of manually or electronically controlled still, motion picture or video machines, projectors, computer generated or displayed images or other image producing devices which serve less than five persons at any one time and are maintained to display images distinguished or characterized by an emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical parts.

"Adult Motion Picture Theater."

A business establishment or concern with one or more viewing rooms with the capacity for 50 or more persons which, as a regular and substantial course of conduct, presents for any form of consideration films, motion pictures, videos, slide photographs, computer generated or displayed images or other pictures or visual reproductions which are distinguished or characterized by their emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical parts.

"Live Art Class."

Any premises on which all of the following occur: there is conducted a program of instruction involving the drawing, photographing, or sculpting of live models exposing specified anatomical parts; instruction is offered in a series of at least two classes; the instruction is offered indoors; an instructor is present in the classroom while any participants are present; and pre-registration is required at least 24 hours in advance of participation in the class.

"Performer."

Any dancer, model, entertainer, and/or other person who publicly performs any specified sexual activities or publicly display any specified anatomical part in adult entertainment businesses.

"Sexually-Oriented Material."

Any element of sexually-oriented merchandise, or any book, periodical, magazine, photograph, drawing, sculpture, motion picture film, or other written, oral, or visual representation characterized by an emphasis on matter depicting, describing, or relating to specified sexual activities or specified anatomical parts. This definition also includes, but is not limited to, sexual novelties depicting, designed or shaped as specified anatomical parts or which depict specific sexual activities.

"Sexually-Oriented Merchandise."

Sexually-oriented implements and paraphernalia, such as, but not limited to: dildos, auto sucks, sexually-oriented vibrators, edible underwear, benwa balls, inflatable orifices, anatomical balloons with orifices, simulated and battery operated vaginas, and similar sexually-oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sadomasochistic activity.

"Specified Anatomical Parts."

Less than completely and opaquely covered human genitals; pubic region; buttocks; or female breast below a point immediately above the top of the areola; or

"Specified Sexual Activities."

Exposed human male genitals or human male genitals in a discernibly turgid state, regardless of whether they are completely and opaquely covered.

Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed genitals, flagellation or torture in the context of a sexual relationship, or the use of excretory function in the context of a sexual relationship, any of the following depicted sexually-oriented acts or conduct: anilingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerastia; or

Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or