This article establishes the adult entertainment regulations. The purpose of these regulations is to implement policies contained in the General Plan, particularly those relating to the conservation of existing neighborhoods and the compatibility of uses. In adopting this article, it is recognized that certain types of adult entertainment businesses possess certain objectionable operational characteristics which, if such uses are allowed to concentrate, will have adverse effects upon the character of the areas in which they concentrate and adjacent neighborhoods. Special regulation of adult entertainment uses is therefore necessary to ensure that these adverse effects of adult entertainment uses will not contribute to the blighting or downgrading of zoning districts in which they are permitted or of surrounding neighborhoods.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
This article shall not be interpreted as legalizing or condoning the production, presentation, sale, advertisement, dissemination, or distribution of matter which is obscene as defined and regulated by applicable State and local laws; nor shall this article be interpreted as legalizing or condoning participation in management, production, presentation, or exhibition of obscene live conduct in any public place or any place exposed to the public view as defined and regulated by applicable State and local law; nor shall this article be interpreted as legalizing or condoning any other activity which is otherwise prohibited by State or local law.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
It is unlawful to establish any adult entertainment business as defined in this article as a Home Occupation as defined in Article 8 of this chapter.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
It is unlawful to establish any adult entertainment business as defined in this article in any district other than the INH Heavy Industrial zone.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
Within the INH Heavy Industrial zone, no adult entertainment business shall be established in the following locations:
(a) 
Within two hundred feet (200') of any area zoned for residential use;
(b) 
Within five hundred feet (500') of any other adult entertainment business;
(c) 
Within one thousand feet (1,000') of any public park, religious institution or elementary or secondary school.
The distance between any two (2) adult entertainment businesses shall be measured in a straight line, without regard to intervening structures, from the closest exterior structural wall of each business. The distance between any adult entertainment business and any residential district, religious institution, school, or public park shall be measured in a straight line, without regard to intervening structures, from the closest property line of the residential zone, religious institution, school, or public park to the closest exterior structural wall of such adult entertainment business.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
It is unlawful to establish an adult entertainment business without first obtaining a conditional use permit as provided in this article. No other use permit shall be required to operate an adult entertainment business. No final action may be taken by the Planning Commission until the Emeryville Police Department has issued an operating permit for the use or a statement that such permit is not required. To grant a conditional use permit for an adult entertainment business, the following findings must be made in addition to the findings required by Article 5 of Chapter 7:
(a) 
That the proposed adult entertainment business meets all of the location requirements of Section 9-5.305.
(b) 
That the proposed adult entertainment business will not be open between 2:00 a.m. and 6:00 a.m. daily.
(c) 
That the proposed adult entertainment business will not use electronic amplification between midnight and 6:00 a.m. daily.
(d) 
That the proposed adult entertainment business will be adequately soundproofed or insulated for noise and operated so that incidental noise shall not be audible beyond the premises.
(e) 
That the proposed adult entertainment business will comply with all applicable performance standards in Article 11 of this chapter.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
In approving a conditional use permit for an adult entertainment business, the Planning Commission may designate such conditions as it deems necessary in order to fulfill the purposes of this article, and may require reasonable guarantees and evidence that such conditions are being, or will be, complied with. Such conditions shall not be less restrictive than the conditions attached to any operating permit issued by the Emeryville Police Department, and may include, but are not limited to, designating hours of operation more restrictive than those listed in Section 9-5.306(b).
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
All building openings, entries, and windows of adult entertainment businesses shall be located, covered, or screened in such a manner as to prevent a view into the interior from any public or semipublic area, including public sidewalks, streets, arcades, hallways, or passageways of any material which has as its primary or dominant theme matter depicting, illustrating, describing, or relating to "specified sexual activities" or "specified anatomical areas" as defined in this article. Furthermore, such businesses may not have signs, graphics, or window displays which in any way present, depict, illustrate, or describe such material when such material has as its purpose or effect sexual arousal, gratification, or affront.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)
(a) 
For the purpose of this article "adult entertainment businesses" includes all Adult Oriented Businesses as defined in Section 9-2.303, and more specifically refers to the following establishments:
(1) 
"Adult arcade"
shall mean an establishment where, for any form of consideration, one (1) or more motion picture projectors, slide projectors, or similar machines, for viewing by five (5) or fewer persons each, are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas."
(2) 
"Adult bookstore"
shall mean an establishment in which at least thirty percent (30%) of the business involves the sale, for any form of consideration, of any one (1) or more of the following:
a. 
Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes, slides, or other visual representations which are characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas," or
b. 
Instruments, devices, or paraphernalia which are designed for use in connection with "specified sexual activities." This definition does not include a bona fide pharmacy.
c. 
For purposes of this definition, "at least thirty percent (30%) of the business" means at least thirty percent (30%) of the stock-in-trade, or at least thirty percent (30%) of the floor area of that portion of its total premises devoted to the display of its stock-in-trade, or the derivation of at least thirty percent (30%) of the gross income of the establishment.
(3) 
"Adult motion picture theater"
shall mean an establishment where, for any form of consideration, films, motion pictures, video cassettes, slides, or similar photographic reproductions are shown to an audience of six (6) or more persons, and in which a substantial portion of the total presentation time is devoted to the showing of material which is characterized by an emphasis upon the depiction or description of "specified sexual activities" or "specified anatomical areas."
(4) 
"Adult theater"
shall mean a theater, concert hall, auditorium, or similar establishment which, for any form of consideration, regularly features live performances which are characterized by the exposure of "specified anatomical areas" or by "specified sexual activities."
(5) 
"Bathhouse"
shall mean an establishment which provides the services of baths of all kinds, including all forms and methods of hydrotherapy, during which "specified anatomical areas" are displayed or "specified sexual activities" occur. This section shall not apply to hydrotherapy practiced by, or under the supervision of, a medical practitioner, chiropractor, acupuncturist, or physical therapist, or a similar establishment where baths or hydrotherapy are offered as incidental or accessory services.
(b) 
For the purposes of this article, "specified sexual activities" shall include the following:
(1) 
Human genitals in a state of sexual stimulation or arousal;
(2) 
Acts of human masturbation, sexual intercourse, or sodomy; or
(3) 
Fondling or other erotic touching of human genitals, pubic region, buttock, or female breast.
(c) 
For the purposes of this article, "specified anatomical areas" shall include less than completely and opaquely covered: human genitals or pubic region; buttock; or female breast below a point immediately above the top of the areola.
(d) 
For the purposes of this article, certain terms and words are defined as follows:
(1) 
"Establishment"
shall mean the "establishment" of an adult entertainment business and shall mean and include 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 an adult entertainment business, or any of the adult entertainment businesses defined herein;
c. 
The addition of any of the adult entertainment businesses defined herein to any other existing adult entertainment business; or
d. 
The relocation of any such business.
(2) 
"Person"
shall mean any person, firm, partnership, association, corporation, company, or organization of any kind.
(3) 
"Public park"
shall mean a park, playground, swimming pool, beach, pier, or athletic field within the City which is under the control, operation, or management of the City.
(4) 
"Religious institution"
shall mean a building which is used primarily for religious worship and related religious activities.
(5) 
"School"
shall mean 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 a special institution of learning under the jurisdiction of the State Department of Education, but it does not include a vocational or professional institution or any institution of higher education, such as a community or junior college, college or university.
(Sec. 2 (Exh. A) (part), Ord. 13-001, eff. Mar. 7, 2013)