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ORDINANCE NO. 3G82
AN ORDINANCE
AMENDING ARTICLE IV OF CHAPTER 15
OF THE BUTTE COUNTY CODE
CONCERNING LOCAL REGULATION OF TOPLESS
AND BOTTOMLESS WAITERS, WAITRESSES AND
ENTERTAINERS IN BARS
The Board of Supervisors of the County of Butte ordains as follows:
SECTION 1. PURPOSE, AUTHORITY AND INTENT.
The purpose of this Ordinance is to regulate topless and bottomless waiters, waitresses,
entertainers and exhibitions at bars within the unincorporated areas of the County. This Ordinance
is adopted pursuant to California Constitution article 11, section 7, Butte County Charter, Article
I, section 1, Penal Code sections 318.5 and 318.6, California Code of Regulations title 4, section
143.5, and other applicable law.
At this time, the Board intends to limit the applicability of this Ordinance to bars that operate
as an adult business. The Ordinance is limited to bars in order to satisfy the limits ofMarris v.
Municipal Court (1982) 32 Ca1:3d 553, which holds that a nudity regulation is enforceable in bars,
but possibly not at non-bar adult businesses.
If the new Court of Appeal decision, Tily B., Inc. v. City of Newport Beach (1999) 1999
Daily Journal D.A.R. 69 {which approved abroader nudity regulation in all adult businesses, not just
bars, and concluded that Morris is na longer applicable law},becomes final and remains valid law,
or if the legal authority to regulate nudity in all adult businesses is otherwise clarified, then the Board
in the future intends to expand the regulation adopted by this Ordinance to apply to all adult
businesses.
SECTION 2. FINDINGS. The Board of Supervisors finds and determines as follows {the
definitions added to the Butte County Code by section 4 of this Ordinance shall apply to these
findings):
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A. The Board, in adopting this Ordinance, takes legislative notice of the existence and
content of the following studies concerning the adverse secondary side effects of Adult Businesses
in other cities: Garden Grove, California (1991}; Tucson, Arizona (1990); Seattle, Washington
(1989); Austin, Texas (1986); Oklahoma County, Oklahoma (1986); Indianapolis, Indiana (1984);
Houston, Texas {1983); Beaumont, Texas {1982); Minneapolis, Minnesota (1980); Phoenix, Arizona
(1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles,
California (1977). Copies of these reports are available for public review during regular business
hours at the Butte County Administration Office {25 County Center Dr., Oroville, California 95965).
The Board finds that these studies are relevant to the problems addressed by the County in enacting
this Ordinance to regulate the adverse secondary side effects of Adult Businesses, and more
specifically finds that these studies provide convincing evidence that:
1. Adult Businesses are linked to increases in the crime rates in those areas in which
they are located and in surrounding areas.
2. There is substantial evidence that an increase in crime tends to accompany,
concentrate around, and be aggravated by Adult Businesses, including but not limited to an increase
in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons
and property. The studies from the above-referenced jurisdictions establish convincing evidence that
Adult Businesses that are not regulated often have a deleterious effect on nearby businesses in
residential areas, causing, among other adverse secondary effects, an increase in crime and a
decrease in property values.
3. The Board finds that nude dancing and nude or partially nude waiters, waitresses
and servers may encourage andlor cause or result in an increase in prostitution and sexual assaults,
and may attract other criminal activity. Regulation of nudity therefore furthers an important and
substantial interest of the County in preventing prostitution, sexual.assaults, associated crimes, and .
other adverse secondary effects.
4. The Board takes legislative notice of Justice Souter's concurring opinion in Barnes
v. Glenn Theater (1991) 501 U.S. 560 regarding the court's conclusions that the regulation of nudity
28 ~~ is appropriate to further government's important and substantial interest in preventing prostitution,
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sexual assaults, associated crimes, and other adverse secondary effects.
B. Based on the foregoing, the Board finds and determines that special regulation of nudity
at Adult Business Bars is necessary and appropriate to prohibit and limit adverse secondary effects
I associated with Adult Business Bars.
C. The regulations established by this Ordinance da not unreasonably restrict the
establishment ar operation of constitutionally protected Adult Businesses in Butte County, and the
minimal clothing required by this Ordinance does not deprive or unreasonably restrict any expressive
message or activity protected by the First Amendment.
D. Tn developing this Ordinance, the Board has been mindful of legal principles relating to
regulation of Adult Businesses and does not intend to suppress or infringe upon any expressive
activities protected by the First Amendments of the United States and California Constitutions, but
instead desires to enact reasonable regulations that address the adverse secondary effects of Adult
Businesses. The Board has considered various decisions as authorizing and upholding this nudity
regulation, including but not limited to: Barnes v. Glenn Theater {1991} 501 U.S. 560; New York
State LiquorAuthority v. Bellanca (1981) 452 U.S. 714; California v. LaRue {1972} 409 U.S. 109;
Morris v. Municipal Court {1982) 32 CaL3d 553; and, Tily B., .Inc. v. City ofNewportBeach (1999)
1999 Daily Journal D.A.R. 69.
E. The Board also takes legislative notice of the facts recited in the case of Kev,1'nc. v.
Kitsap County, {9`'' Cir., 1986} 793 F.2d 1053, and other cases, regarding how live adult
entertainment results in secondary effects such as prostitution, drug dealing, and other law
enforcement problems.
F. The Board of Supervisors finds the following, in part based upon its understanding
of the documents and judicial decisions in the public record: (1) Evidence indicates that some
Perl'o;nmers have been found to engage in sexual activities with patrons of Adult. Businesses. on the .
site of the Adult Business; (2}Evidence has demonstrated that Performers in Adult 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
Adult Businesses have been found to engage in acts of prostitution with patrons of the establishment
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and (4) As a result of the above, and the increase in incidents of AIDS and Hepatitis B, which are
both sexually transmitted diseases, the County has a substantial interest in adopting regulations that
will reduce, to the greatest extent possible, the possibility far the occurrence of prostitution, sexual
assaults, associated crimes and casual sex acts at Adult Businesses.
G. The Board desires to minimize and control the adverse secondary side effects associated
with nudity at Adult Business Bars and thereby: protect the health, safety, and welfare of the citizens
of Butte County; protect the citizens from increased crime; preserve the quality of life; and protect
against the threat to health from the spread of communicable and sexually transmitted diseases.
H. While the Board desires to protect the rights conferred by the United States and California
Constitutions to Adult Businesses, it does so in a manner that ensures the continued and orderly
development of property within the County and diminishes, to the greatest extent feasible, those
undesirable secondary effects which the above-referenced studies and court cases have shown to be
associated with the development and operation of Adult Businesses.
SECTION 3. AMENDMENT OF ARTICLE IV. Butte County Cade Article N (sections 15-100
- 15-105) of Chapter 15 is hereby amended to read as follows:
ARTICLE IV. LOCAL REGULATION OF TOPLESS AND
BOTTOMLESS WAITERS, WAITRESSES AND ENTERTAINERS IN BARS
Sec. 15-100. Definitions.
The definitions set forth below shall apply to this Article:
(a) "Adult Business" means any one of the following:
(1) Adult Arcade. The term."Adult Arcade" is_an establishment where, for. any form
of consideration, one or more still or motion picture prof ectors, or similar machines, for viewing by
five or fewer persons each, are used to show films, computer generated images, motion pictures,
video cassettes, slides or other photographic reproductions 30% or more ofthe number of which are
distinguished or characterized by an emphasis upon the depiction or description ofSpecified Sexual
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~ Activities or Specified Anatomical Areas.
(2) Adult Bookstore. The term "Adult Bookstore" is an establishment that has 30%
or more of its current stock in retail areas open to customers (excluding storage areas not open to
customers) in books, magazines, periodicals or other printed matter, or ofphotographs, f hns, motion
pictures, video cassettes, slides, tapes, records or other form of visual or audio representations which
are distinguished or characterized by an emphasis upon the depiction or description of Specified
Sexual Activities or Specified Anatomical Areas.
(3) Adult Cabaret. The term "Adult Cabaret" is a bar, nightclub, restaurant or similar
business establishment that: (i) regularly features live performances that are distinguished or
characterized by an emphasis on the exposure of Specified Anatomical Areas or Specified Sexual
Activities; (ii} regularly features persons who appear nude or semi-nude; andlor (iii} shows films,
computer generated images, motion pictures, video cassettes, slides, or other photographic
reproductions 30% or mare of the number of which are distinguished or characterized by an
emphasis upon the depiction or description of Specified Sexual Activities or Specified Anatomical
Areas.
(4} Adult HotellMotel. The term "Adult HotellMotel" is a hotel, motel, lodging
house or similar business establishment offering public accommodations for any form of
consideration that: (i}provides patrons with closed-circuit television transmissions, films, computer
generated images, motion pictures, video cassettes, slides, or other photographic reproductions 34%
or more of the number of which are distinguished or characterized by an emphasis upon the
depiction or description of Specified Sexual Activities or Specified Anatomical Areas; and (ii) rents,
leases or lets any roam for less than a six hour period, or rents, leases or lets any single room more
than twice in a 24-hour period.
(5} Adult Motion Picture Theater. The term, "Adult Motion Picture Theater'' is a
business establishment where, far any form of consideration, films, computer generated images,
motion pictures, video cassettes, slides or similar photographic reproductions are shown, and 30%
or more of the number of which are distinguished or characterized by an emphasis upon the
depiction or description of Specified Sexual Activities or Specified Anatomical Areas.
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{6) Adult Theater. The term "Adult Theater" is a theater, concert hall, auditorium,
or similar establishment that, for any form of consideration regularly features live performances
which are distinguished or characterized by an emphasis on the display of Specified Sexual
Activities or Specified Anatomical Areas.
{7) Modeling Studio. The term "Modeling Studio" is a business that 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 (a) schools maintained pursuant to standards set
by the State Board of Education, or (b) 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.
(b) "Adult Business Bar" means a bar, pub, tavern, restaurant or similar establishment that
(i) operates pursuant to an on-sale license issued by the California Department of Alcoholic
Beverage Control, and {ii) also constitutes an Adult Business as defined above.
(c) "Adult Business Permit" or "Adult Business Performer Permit" means an adult business
permit, adult business regulatory permit or adult business performer permit issued by the County
pursuant to County Ordinance No. 3445 or any amended or subsequent County ordinance imposing
such permit requirements.
(d) "Distinguished or characterized by an emphasis upon" means and refers to the dominant
or essential theme of the object described by such phrase. For instance, when the phrase refers to
films "which are distinguished or characterized by an emphasis upon" the depiction or description
of specified sexual activities or specif ed anatomical areas, the films so described are those whose
,..dominant or predominant character, and.theme.are, the. depiction ofthe enumerated sexual activities.,.,.
ar anatomical areas. {See Pringle v. County of Covina (1981) 115 Cal.App.3d 151}.
(e) "Nudity" means the showing of the 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 areola, or the showing of the covered male genitals in a
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discernibly turgid state.
(f) "Operator" means a person who supervises, manages, maintains, inspects, directs,
organizes, controls or in any other way is responsible far ar in charge of the premises of an Adult
Business or the conduct or activities occurring on the premises thereof.
(g) "Performer" means an individual who performs, entertains, dances andlor models at an
Adult Business in any Live entertainment depicting Specified Anatomical Areas or involving
Specified Sexual Activities.
{h} "Permittee" means a person or entity who is issued an Adult Business Permit or Adult
Business Performer Permit.
(i) "Regularly features" with respect to an Adult Theater or Adult Cabaret means a regular
and substantial course of conduct. The fact that live performances that are distinguished or
characterized by an emphasis upon the display of specified anatomical areas or specified sexual
activities occurs on two or more occasions within a 30 day period; three or more occasions within
a 60 day period; or four or mare occasions within a 180 day period, sha11 to the extent permitted by
law be deemed to be a regular and substantial course of conduct.
(j} "Specif ed Anatomical Areas" means and includes any of the fallowing: (1) Less than
completely and opaquely covered human (i} genitals or pubic region (ii) buttocks and {iii) female
breast below a point immediately above the top of the areola; (2) Human male genitals in a
discernibly turgid state, even if completely and opaquely covered; and {3) Any device, costume or
covering that simulates any of the body parts included in subdivisions (1) or (2} above.
(k} "Specified Sexual Activities" means and includes any of the following, whether
performed directly or indirectly through clothing or other covering: {1) The fondling or other erotic
touching of human genitals, pubic region, buttocks, anus, or female breast; (2) Sex acts, actual or
...simulated, including intercourse, oral copulation, or sodomy; (3) Masturbation, actual or simulated;.....
and {4) Excretory functions as part of or in connection with any of the other activities described in
subdivision (1) through (3) of this subsection.
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Sec. 15-101. Applicability.
This Article shall apply only to Adult Business Bars.
Sec. 15-102. Nudity Regulation.
No waiter, waitress, server or Performer on the premises of an Adult Business Bar shall
appear in a state of Nudity. No Operator or Permittee of an Adult Business Bar shall permit or allow
any waiter, waitress, server or Performer an the premises of the Adult Business Bar to appear in a
state of Nudity.
I Sec. 15-103. Enforcement.
Any violation of this Article maybe enforced as follows:
A. A violation of this Article by any person or entity is hereby declared to be a public
nuisance. Any Adult Business Bar, in which the Operator and/or Permittee allows or permits a
violation of this Article, is hereby declared to be a public nuisance. Any such public nuisance may
be enjoined in the manner provided by law for abatement of public nuisances;
B. Any violation of this Article shall be grounds for suspension or revocation of the Adult
~ Business Permit for the premises;
C. Any violation of this Article by a Performer shall be grounds for suspension or revocation
of the Performer's Adult Business Performer Permit, if any; or
D. Any other remedy provided by law (but not including any criminal remedies or
sanctions).
Sec. 15-104. Relationship to Adult Business Regulation.
Nothing in this Article shall affect the...applicability of County Ordinance No. 3445 or any
amended or subsequent County ordinance regulating Adult Businesses and/or Performers. Adult
Business Bars and Performers at Adult Business Bars shall be subj ect to this Article and any County
~ ordinance regulating Adult Businesses and/or Performers.
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Sec. I5-I OS. Exceptions.
This Article shall not apply to any Adult Business Bar that (a) prior to January 1, 1999, has
been adjudicated by a court of competent jurisdiction to be a theater, concert hall or similar
establishment primarily devoted to theatrical performances for purposes of Penal Code sections
31$.5 andlar 318.6, or {b) by action of the County has been issued an Adult Business Permit
allowing the business to operate on or before July 1, 1998 as a theater, concert hall or similar
establishment primarily devoted to theatrical performances for purposes of Penal Code sections
318.5 andlor 318.6.
~~ SECTION 4. SEVEItABILITY. 1f any provision of this Ordinance or the application thereof to
any person or circumstances is for any reason held to be invalid by a court of competent jurisdiction,
such provision shall be deemed severable, and the invalidity thereof shall not affect the remaining
provisions or other applications of the Ordinance which can be given effect without the invalid
provision or application thereof. Without limiting the generality ofthe foregoing, the Board declares
that it would have adopted each section, subsection, paragraph and provision of this Ordinance
irrespective of the fact that one or more other sections, subsections, paragraphs, or provisions may
~ be declared or found to be unconstitutional, invalid or ineffective.
~~ SECTION 5. EFFECTIVE DATE AND PUBLICATION. This Ordinance shall take effect thirty
(30) days after the date of its passage. The Clerk of the Board of Supervisors is authorized and
directed to publish this Ordinance before the expiration of fifteen {15) days after its passage. This
Ordinance shall be published once, with the names of the members of the Board of Supervisors
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voting for and against it, in the Chico Enterprise Record , a newspaper of general
circulation published in the County of Butte, State of California.
PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of
California, on the zb th day of January , 1999, by the following vote:
AYES: Supervisors Beeler, Davis, Houx, Josiassen and Chair Dolan
NOES: None
ABSENT: None
NOT VOTING: None
Attest:
of the Board of Supervisors
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