Banning Municipal Code Ch. 5.80 Adult-Oriented Live Entertainer Licenses

It is the purpose of this chapter to license persons who perform adult-oriented live entertainment to promote the health, safety and general welfare of the citizens of the city. The provisions of this chapter have neither the purpose nor effect of imposing a limitation or restriction on the content of any expressive conduct that is protected by the First Amendment of the United States Constitution or the relevant provisions of the California State Constitution.

(Ord. No. 1340, § 4 (part).)

Words and phrases defined in Section 5.76.020 of this title shall have the same meanings in this chapter. In addition, the following words and phrases shall have the meanings set forth below:

"City clerk" means the city clerk of the city or the designee of the city clerk.

"City manager" means the city manager of the city or the designee of the city manager.

"Name" means the person's legal name and any nicknames and aliases used within the preceding two years.

"Of age" means a person who is at least twenty-one years of age if alcoholic beverages are served or sold, or are proposed to be served or sold, on the premises. "Of age" means a person who is at least eighteen years of age if alcoholic beverages are not served or sold, and are not proposed to be served or sold, on the premises.

(Ord. No. 1340, § 4 (part).)

A. Except as provided in subsection B below, a person commits a misdemeanor, subject to punishment in accordance with Section 1.28.020 of this Code, if that person performs adult-oriented live entertainment in the city without a valid adult-oriented live entertainer license issued by the city to that person.

B. A person who lawfully performed adult-oriented live entertainment in the city prior to the date that this chapter becomes applicable to that person commits a misdemeanor, subject to punishment in accordance with Section 1.28.020 of this Code, if that person continues to perform adult-oriented live entertainment more than three months after this chapter becomes applicable to the person without a valid adult-oriented live entertainer license issued by the city to that particular person.

C. The fact that a person possesses any other valid license, permit or certificate issued by the city, the County of Riverside or the State of California does not exempt the person from the requirement of obtaining an adult-oriented live entertainer license pursuant to this chapter. A person who performs adult-oriented live entertainment in the city and possesses any other city, county or state license, permit or certificate shall comply with the requirements and provisions of this chapter.

(Ord. No. 1340, § 4 (part).)

A. An application for an adult-oriented live entertainer license must be made on a form provided by the city, and the form shall be signed by the applicant under penalty of perjury. The applicant shall be in the office of the city clerk and shall be accompanied by a filing fee, as established by resolution of the city council.

B. Because adult-oriented live entertainer licenses are nontransferable, because persons who are not of age are not allowed to perform adult-oriented live entertainment and because some persons who perform live entertainment are known to engage in unlawful sexual activity or unlawful drug transactions, the application shall include the following:

1. The applicant's full name and any other names or aliases used by the individual during the last five years;

2. Age, date and place of birth;

3. Height, weight and color of hair and eyes;

4. State driver's license or identification number;

5. The name, street address and telephone number of the adult-oriented business at which the applicant intends to perform and whether or not alcoholic beverages are served or sold on the premises;

6. Documentary proof that the applicant is of age;

7. The address to which notice is to be mailed and, at the applicant's option, a telephone number and whether the address and/or telephone number is for the applicant's residence;

8. A statement detailing the history of adult-oriented live entertainment performed by the applicant during the two years immediately preceding the date of the filing of the application, including whether the applicant has ever had a license, permit, certificate or other authorization to perform adult-oriented live entertainment denied, revoked or suspended in this state or anywhere else. In the event of any such denial, revocation or suspension, the name of the license, permit, certificate or other authorizing jurisdiction, the date of the denial, revocation or suspension, the reasons for the denial, revocation or suspension described in full detail, and whether the denial, revocation or suspension is final; and

9. Two two-inch by two-inch color photographs of the applicant clearly showing the applicant's face.

C. The application shall be filed in duplicate consisting of the original and one clear photocopy of the original, including all attachments, provided, however, no photographs need be attached to the copy.

D. Notwithstanding the fact that an application filed hereunder may be a public record under Government Code Section 6250 et seq., certain portions of such application contain information vital to the effective administration and enforcement of the licensing and/or permit scheme established herein which is personal, private, confidential or the disclosure of which could expose the applicant to a risk of harm. Such information includes, but is not limited to, the applicant's residence address and telephone number, the applicant's date of birth and/or age, the applicant's driver's license or identification number, and/or personal financial data. The city council in adopting the application and licensing and/or permit system set forth herein has determined in accordance with Government Code Section 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentiality or security interests are protected. The city clerk shall cause to be obliterated from any copy of a completed license application made available to any member of the public the information set forth above.

(Ord. No. 1340, § 4 (part).)

A. The city manager shall investigate the application and grant or deny issuance of a license within not less than one hundred twenty days of the city's receipt of the fingerprint background information from the Department of Justice. Otherwise, the application shall be deemed granted by operation of law and the applicant shall be entitled to engage in the proposed activity subject to the remaining provisions of this chapter and the provisions of this Code. After submittal of a complete application form, including proof of age, the city manager shall issue a provisional permit to the applicant. Such provisional permit shall entitle the applicant to perform at an adult entertainment business pending the city manager's decision on the permit application. The provisional permit shall expire upon the decision of the city manager on the application or the expiration of ten days following the submittal of the complete application, whichever occurs first.

B. The city manager shall issue the license unless he/she finds one or more of the following to be true:

1. The applicant failed to pay the filing fee required by this chapter;

2. The application is incomplete in any material way;

3. The application contains any false, misleading or fraudulent statement of material fact and the applicant knew or should have known that the statement was false, misleading or fraudulent;

4. An applicant is not of age;

5. The applicant proposes to perform at other than an adult-oriented business that possesses a valid adult-oriented business license issued by the city;

6. The applicant proposes to perform at other than an adult-oriented business that is located in conformance with this Code and that conforms to the standards set forth in this Code;

7. Less than one year has elapsed since the applicant had a license, permit or other authorization to perform adult-oriented live entertainment denied by the city or any other jurisdiction and the denial is final, provided that the ground for the denial was that the application contained any false, misleading or fraudulent statement of material fact and the applicant knew or should have known that the statement was false, misleading or fraudulent;

8. Less than one year has elapsed since the applicant had a license, permit or other authorization to perform adult-oriented live entertainment revoked by the city or any other jurisdiction and the revocation is final; and

9. An applicant has been convicted of, and the conviction is final, or pleaded nolo contendere to, a specified criminal act for which:

a. Less than two years have elapsed since the date of conviction or plea, if the conviction or plea is for a misdemeanor offense for a specified criminal act which is a crime of prostitution or pandering, or

b. Less than five years have elapsed since the date of conviction or plea, if the conviction or plea is for a felony offense for a specified criminal act which is a crime of prostitution or pandering, or

c. Less than five years have elapsed since the date of the first conviction or plea, if the convictions or pleas, or combination thereof, are for two or more misdemeanors offenses for specified criminal acts which are crimes of prostitution.

In no event shall the criminal history review required under subsection B of this section, or the decision to grant or deny a license, include or be based upon information authorized or required to be kept confidential in accordance with Welfare and Institutions Code Sections 600 through 900.

C. While investigating the license application, the city manager shall cause a review of the criminal history of the applicant to be undertaken.

D. The license shall state on its face the name of the person to whom it is issued, the expiration date, and the address of the adult-oriented business at which the licensee shall perform.

E. Within two business days after the city manager acted on the application or within two business days after the license was deemed granted by operation of law, the city clerk shall send to the applicant, by certified mail, return receipt requested, written notice of the disposition of the application. If the license was granted, the notice shall include the license. If the license was denied, the notice shall include the city manager's written findings of fact.

(Ord. No. 1340, § 4 (part).)

A. If the application for an adult-oriented business license was denied by the city manager, the applicant shall have ten calendar days from the date the notice of the disposition was deposited in the mail within which to appeal the denial of the application to the city council. If the tenth calendar day falls on a day the city is closed, the time shall be extended to the next business day. The appeal shall be filed in writing in the office of the city clerk and shall be accompanied by a filing fee, as established by resolution of the city council.

B. If the appeal is timely and properly filed together with the filing fee, the city clerk shall mail notice of the date, time and place of a de novo hearing before the city council to the applicant at least ten days prior to the hearing. The hearing shall be commenced at the earliest possible date authorized by law, but in no event later than thirty days after the date that the appeal was filed. Within forty-five days after the date the appeal was filed, the city council shall act on the appeal. Otherwise, the license shall be deemed granted by operation of law, and the applicant shall be entitled to engage in the proposed activity subject to the remaining provisions of this chapter and all other applicable provisions of this Code.

C. Within two business days after the city council acted on the appeal or within two business days after the license was deemed granted by operation of law, the city clerk shall sent to the applicant, by certified mail, return receipt requested, written notice of the disposition of the appeal. If the license was granted, the notification shall include the license. If the license was denied, the notification shall include the city council's findings of fact.

(Ord. No. 1340, § 4 (part).)

A. Each adult-oriented business license issued pursuant to this chapter and each renewal thereof shall expire on December 31st of the year in which it was granted.

B. An application to renew a license must be made on a form provided by the city, and the form shall be signed by the applicant under penalty of perjury. The applicant shall be filed with the city clerk and shall be accompanied by a filing fee, as established by resolution of the city council.

C. If there has been no change in any of the information set forth in the application that was filed pursuant to Section 5.80.040 of this chapter, the renewal application shall consist of a statement to that effect. If there has been a change in the information, the renewal application shall include all of the information required by Section 5.80.040.

D. The renewal application shall be filed at least thirty days, but not more than sixty days, prior to the expiration of the current license and shall be processed in accordance with the provisions of Sections 5.80.050 and 5.80.060 of this chapter.

E. If the renewal application is timely and properly filed together with the filing fee, the license shall be extended until the decision of the city manager or the city council on appeal becomes final.

(Ord. No. 1340, § 4 (part).)

A. No adult-oriented entertainer license issued pursuant to this chapter shall be transferable to any other person. The license shall be immediately void, if the licensee attempts to, or transfers, the license to another person.

B. The licensee shall not perform adult-oriented live entertainment at any place other than the adult-oriented business shown on the adult-oriented live entertainer license.

C. The licensee shall not perform adult-oriented live entertainment unless the adult-oriented live entertainer license is displayed in a conspicuous place at or near the entrance to the adult-oriented business so that it may be easily read at any time during the performance.

(Ord. No. 1340, § 4 (part).)

A. Upon determining that any of the reasons specified in subsection B or C of this section exists, the city manager shall issue a notice of intent to suspend or revoke the adult-oriented business license. The notice shall include a factual statement of the reason for the action. The notice shall also include a statement that the suspension or revocation shall become effective on the twenty-first day after the notice was deposited in the U.S. mail, unless the licensee files an appeal in accordance with subsection D of this section prior to that date. The city clerk shall mail the notice to the licensee, certified mail, return receipt requested, addressed to the licensee at the address shown on the application, within two business days after it is issued by the city manager.

B. An adult-oriented business license shall be suspended a period of days or until the violation is corrected, whichever is longer, if any one or more of the following exists:

1. The licensee is performing adult-oriented live entertainment at an adult-oriented business at any time while the adult-oriented business license for the business is suspended; and

2. There exists any of the grounds for revocation, as set forth in subsection C of this section, but the city manager in his/her sole discretion, or the city council on appeal in its sole discretion, decides to impose a suspension in lieu of revocation.

C. An adult-oriented live entertainer license shall be revoked and no new adult-oriented live entertainer license may be requested by the licensee within a one-year period following revocation, if one or more of the following exists:

1. The application for the license contains any false, misleading or fraudulent statement of material fact and the licensee knew or should have known that the statement was false, misleading or fraudulent;

2. The licensee is not of age;

3. The licensee has performed at other than an adult-oriented business that possesses a valid adult-oriented business license issued by the city and the licensee knew or should have known that the business was not licensed by the city;

4. The licensee has performed at other than an adult-oriented business that is located in conformance with this Code and that conforms to the standards set forth in this Code and the licensee knew or should have known that the business did not conform to the standards of this Code;

5. The licensee has had a license, permit or other authorization to perform adult-oriented live entertainment revoked by any other jurisdiction and the revocation is final;

6. An applicant has been convicted of and the conviction is final, or pleaded nolo contendere to, a specified criminal act for which:

a. Less than two years have elapsed since the date of conviction or plea, if the conviction or plea is for a misdemeanor offense for a specified criminal act which is a crime of prostitution or pandering, or

b. Less than five years have elapsed since the date of conviction or plea, if the conviction or plea is for a felony offense for a specified criminal act which is a crime of prostitution or pandering, or

c. Less than five years have elapsed since the date of the first conviction or plea, if the convictions or pleas, or combination thereof, are for two or more misdemeanor offenses for specified criminal acts that are crimes of prostitution;

7. The licensee has violated any provision of this chapter; or

8. The licensee has violated any provisions of this Code;

9. The licensee has been convicted of a felony in a court of competent jurisdiction in conjunction with, or as a result of, performing adult-oriented live entertainment in the city;

10. There have been two or more suspensions of an adult-oriented business license within a one-year period;

11. The licensee continued to perform adult-oriented live entertainment in the city during a suspension of the adult-oriented live license;

12. The licensee appeared in a state of nudity or exposed or displayed specified anatomical areas on the premises of an adult-oriented business; and

13. The licensee committed an offense, occurring in or on the premises of an adult-oriented business, constituting a specified criminal act for which a conviction has been obtained.

D. The licensee shall have twenty days from the date the notice of intent was mailed to the licensee to appeal the suspension or revocation to the hearing officer. The appeal shall be filed in writing in the office of the city clerk and shall be accompanied by a filing fee, as established by resolution of the city council. An appeal that is timely and properly filed together with the filing fee shall stay suspension or revocation of the license until the hearing officer renders a decision on the appeal.

1. The city manager shall have the option to either designate a city hearing officer or allow both the licensee and the city to select a hearing officer from a panel provided by Judicial Arbitration and Mediation Services (JAMS), Inland Valley Arbitration and Mediation Services (IVAMS) or American Arbitration Association, Inc. (AAA). Both parties will equally share in the cost of a hearing officer selected from a panel provided by JAMS, IVAMS or AAA.

2. The appeal shall set forth the specific grounds for the appeal and the relief or action requested from the hearing officer.

3. The hearing shall be commenced at the earliest possible date authorized by law, but in no event later than thirty days from the date the appeal was filed. The city clerk shall mail notice of the date, time and place of the hearing to the appellant at least ten days prior to the hearing. The hearing officer's duties shall be limited to taking testimony, ruling on evidentiary issues and preparing a summary of the evidence.

4. The hearing may be continued from time to time. The hearing shall be limited to the specific grounds set forth in the written appeal. The appellant and the city manager shall have the right to offer testimonial, documentary and tangible evidence bearing on those grounds, be represented by counsel, and confront and cross-examine witnesses. Any relevant evidence that is the sort of evidence upon which reasonable persons are accustomed to reply in the conduct of serious affairs shall be admitted. The hearing officer, may establish additional procedures not in conflict with the provisions of this subsection.

5. The hearing officer is authorized to take testimony and in the course of so doing is authorized to administer oaths or affirmations pursuant to California Code of Civil Procedure Section 2093(a).

6. The hearing officer may inspect the premises involved in the hearing prior to, during or after the hearing, provided that:

a. Notice of such inspection shall be given to the parties before the inspection is made;

b. The parties are given an opportunity to be present during the inspection;

c. The hearing officer shall state for the record during the hearing, or file a written statement after the hearing for inclusion in the hearing record, upon completion of the inspection, the material facts observed and each conclusion drawn from such facts.

7. Each party shall have the right to rebut or explain the matters referenced by the hearing officer either during the hearing or by filing a written statement after the hearing for inclusion in the hearing record.

8. Within forty-five days after the appeal was filed, the hearing officer shall act on the appeal and the city clerk shall deposit in the U.S. mail, certified mail, return receipt requested, addressed to the appellant at the address shown on the applicant, written notice of the decision, including a factual statement of the findings upon which the decision was based. Otherwise, the appeal shall be deemed sustained and the licensee shall be entitled to continue to operate the adult-oriented business subject to the provisions of this chapter and all other applicable laws and city ordinances and regulations.

(Ord. No. 1340, § 4 (part).)

The filing fee for an application, for a renewal application and for an appeal shall be set by resolution of the city council.

(Ord. No. 1340, § 4 (part).)

A. It is unlawful and a misdemeanor, subject to punishment in accordance with Section 1.28.020 of this Code, for any person to alter, modify, change, or amend a license, or any provision thereof, issued pursuant to this chapter; provided that the city manager may correct any error that appears on the face of a previously issued license by re-issuing the license.

B. It is unlawful and a misdemeanor, subject to punishment in accordance with Section 1.28.020 of this Code, for any person to forge an adult-oriented live entertainer license.

(Ord. No. 1340, § 4 (part).)

A person who operates adult-oriented live entertainment without a valid adult-oriented live entertainer license or at other than an adult-oriented business that possesses a valid adult-oriented business license is subject to a suit for injunction as well as criminal prosecution.

(Ord. No. 1340, § 4 (part).)