Chapter 5.58 — ADULT BUSINESS REGULATIONS

* Prior ordinance history: Ord. 465.

The purpose of this chapter is to regulate adult businesses, to promote the health, safety and general welfare of the citizens of the city of Commerce and to establish reasonable and uniform regulations to prevent any deleterious location of sexually oriented businesses within the city, thereby reducing or eliminating the adverse secondary effects from such sexually oriented businesses. The provisions of this chapter have neither the purpose nor the effect of imposing a limitation or restriction on the content of, or access to any communicative materials, as provided by the First Amendment of the United States Constitution and the California Constitution, including sexually oriented materials. Similarly, it is neither the intent nor the effect of this chapter to restrict or deny access to distributors and exhibitors of sexually oriented entertainment to their intended market. Lastly, it is not the intent or the effect of this chapter to condone or legitimize the distribution of obscene material.

(Ord. 539 §2(part), 1999).

The following words and phrases shall, for the purpose of this chapter be defined as follows, unless it is clearly apparent from the context that another meaning is intended:

(1)

"Adult business" means an establishment or concern which as a regular and substantial course of conduct performs or operates, for any form of consideration, any one or more of the following:

(A)

"Adult arcade" means an establishment where, for any form of consideration, one or more motion picture projectors, slide projectors, video projectors, or other similar forms of machine or technology, for the viewing by five or fewer persons each, which, as a regular and substantial course of conduct are used to show films, motion pictures, video cassettes, slides or other photographic or electronic reproductions which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(B)

"Adult bookstore, adult novelty store or adult video store" means an establishment which has as a regular and substantial portion of its business and offers for sale, rent or viewing, for any form of consideration, any one or more of the following:

(i)

Books, magazines, periodicals or other printed matter, which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and/or

(ii)

Photographs, films, motion pictures, videos, slides or other photographic or electronic reproductions which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas; and/or

(iii)

Instruments, devices or paraphernalia that are designed for use in connection with specified sexual activities, with the exception of birth control devices.

(C)

"Adult cabaret" means a nightclub, restaurant, bar, or similar business establishment which:

(i)

Regularly features live performances, which are distinguished or characterized by an emphasis upon the display of specified sexual activities and/or specified anatomical areas; and/or

(ii)

Which regularly features persons who appear semi-nude; and/or

(iii)

Shows films, computer generated images, or photographic reproductions, which are distinguished or characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas.

(D)

"Adult hotel/motel" means a hotel or motel or similar establishment offering public accommodations for any form of consideration which:

(i)

Provides patrons with closed-circuit television transmissions, films, motion pictures, videos, slides or other photographic or electronic reproductions which are characterized by an emphasis upon the depiction or description of specified sexual activities or specified anatomical areas, and which advertises the availability of this adult type of material by means of a sign visible from the public right-of-way or by means of any off- premises advertising including but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television; or

(ii)

Rents, leases, or lets any single guest room for less than a ten hour period, or rents, leases or lets any single guest room more than twice in a twenty-four hour period; or

(iii)

Allows a tenant or occupant to sub-rent the guest room for a time period of less than a ten hour period or more than twice in a twenty-four hour period.

(E)

"Adult lingerie modeling business" means an establishment where, for any form of consideration, lingerie, which exposes specified anatomical areas, is modeled by a person or persons for viewing by adults.

(F)

"Adult massage parlor" means any place where, for any form of consideration or gratuity, massage or any other manipulation of the human body regularly occurs, and where any person providing such manipulation or service related thereto, exposes his or her specified anatomical areas or engages in specified sexual activities. The definition of adult business shall not include the practice of massage in any licensed hospital, nor by a licensed physician, acupressurist, acupuncturist, surgeon, chiropractor or osteopath, nor by any nurse or technician working under the supervision of a licensed physician, surgeon, chiropractor, or osteopath, nor by trainers for any amateur, semi-professional or professional athlete or athletic team or school athletic program.

(G)

"Adult modeling studio" means any establishment which regularly provides, for pecuniary compensation, monetary or other consideration, hire or reward, figure models who display specified anatomical areas or engage in specified sexual activities 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 or schools maintained by an individual artist or group of artists, and which does not provide, permit, or make available specified sexual activities.

(H)

"Adult motion picture theater" means an establishment which as a regular and substantial course of conduct offers to show, for any form of consideration, films, motion pictures, videos, slides or similar photographic or electronic reproductions, 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.

(I)

"Adult tanning salon" means an establishment where patrons receive tanning services in groups of two or more and where patrons or employees of the establishment expose specified anatomical areas. Adult tanning salon shall also include a business establishment where a patron and employee of the establishment are nude or expose specified anatomical areas. An adult tanning salon shall also include a business establishment where the employees thereof are nude or expose specified anatomical areas.

(J)

"Adult theater" means a theater, concert hall, auditorium or similar establishment, which as a regular and substantial course of conduct regularly features, for any form of consideration, live performances which are characterized by the exposure of specified anatomical areas or by the depiction of specified sexual activities.

(K)

"Outcall adult business" means any adult business which as a regular and substantial portion of its business offers, for any form of consideration, to its patrons or customers, products, merchandise, services and/or entertainment, of any type, which are distinguished or characterized by an emphasis on matter exposing, exhibiting, depicting, describing or relating to specified anatomical areas or specified sexual activities, and which business may or may not be located within the city, and where such activity occurs is not located at a fixed location, but occurs at a location within the city limits designated by the patron or customer.

(L)

"Sexual encounter establishment" means an establishment, other than a hotel, motel or similar establishment, which, for any form of consideration as a regular and substantial course of conduct, provides a place where two or more persons may congregate, associate or consort in connection with specified sexual activities or the exposure of specific 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.

(M)

Any other business or concern which as a regular and substantial portion of its business offers, for any form of consideration, to its patrons, products, merchandise, services or entertainment which are distinguished or characterized by an emphasis on matter depicting, describing or relating to specified anatomical areas or specified sexual activities, but not including those uses or activities the regulation of which is preempted by state law.

(2)

"Adult business performer" means any person who performs live entertainment for patrons of an adult business located at a fixed location, or for patrons or customers of an outcall adult business, as defined in this section, whether or not the performer receives any remuneration, tips, gratuities of any kind, or pays the owner or operator for permission to perform in the adult business.

(3)

"Applicant/person" means any individual, proprietorship, partnership, copartnership, corporation, joint stock company, firm, association, transferee of a controlling ownership or interest in an adult business, or other legal entity.

(4)

Distinguished or Characterized by an Emphasis Upon. As used in this chapter, the term "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 specified anatomical areas, the film so described are those whose dominant or predominant character are the depiction of the specified sexual activities or specified anatomical areas. See Pringle v. City of Covina (1981) 115 Cal.App.3d 151.

(5)

"Employee" means any person who works or performs in and/or for an adult business establishment, regardless of whether or not such person is paid a salary, wage or other compensation by the operator of such business, or whether or not the employee is considered an independent contractor or consultant.

(6)

"Establishment of an adult business" includes any of the following:

(A)

The opening or commencement of any adult business as a new business;

(B)

The conversion of an existing business, whether or not an adult business, to any of the adult businesses defined herein;

(C)

The addition of any of the adult businesses defined herein to any other existing adult business; or

(D)

The relocation of any such adult business.

(7)

"Figure model" means any person who, for pecuniary compensation, consideration, hire or reward, poses in a modeling studio to be observed, sketched, painted, drawn, sculpted, photographed or otherwise depicted, displaying his/her specified anatomical areas or engaging in specified sexual activities.

(8)

"Nude," "nudity" or "state of nudity" mean and include the following:

(A)

A state of dress which fails to opaquely and fully cover a human buttocks, anus, male or female genitals, pubic region or areola or nipple of the female breast;

(B)

The showing of the covered human male genitals in a discernibly turgid state.

(9)

Operate an Adult Business. As used in this chapter, "operate an adult business" means the supervising, managing, inspecting, directing, organizing, controlling or in any way being responsible for or in charge of an adult business or activities of an adult business.

(10)

"Operator" means any person who supervises, manages, inspects, directs, organizes, controls or in any other way is responsible for or in charge of the premises of an adult business or the conduct of activities occurring on the premises of an adult business.

(11)

"Permitted or licensed premises" means any establishment that requires a license and/or permit, and that is classified as an adult business.

(12)

"Permittee" means any person in whose name a permit to operate an adult business has been issued, as well as the individual(s) listed as an applicant on the application for a permit and/or license.

(13)

"Public park" means a park or recreation area which has been designated for park or recreational activities, including but not limited to, a playground, swimming pool, golf course or athletic field within the city which

is under the control, operation or management of the city, the county, the state or other public agency.

(14)

Regular and Substantial Course of Conduct and/or Regular and Substantial Portion of its Business. Any business shall be considered an adult business where any of the following conditions exist:

(A)

A regular and substantial course of conduct of the business is devoted to adult materials, except for mail order businesses or wholesale businesses with no patrons on the premises; and/or

(B)

The business or concern presents any type of entertainment, live or otherwise, characterized by an emphasis on specified sexual activity or specified anatomical areas on any two or more separate days within any thirty day period; three or more occasions within a sixty day period; or four or more occasions within a one hundred eighty day period; and/or

(C)

A regular and substantial portion of the gross receipts of the business are derived from the sale, trade, rental, display or presentation of services, products, materials, entertainment, which is characterized by an emphasis on specified sexual activity or specified anatomical areas.

(15)

Regularly Features. The term "regularly features" means a regular and substantial course of conduct distinguished or characterized by an emphasis upon the display of specified anatomical areas or specified sexual activities which occur on two or more occasions within a thirty day period; three or more occasions within a sixty day period; or four or more occasions within a one hundred eighty day period, and shall to the extent permitted by law be deemed to be a regular and substantial course of conduct.

(16)

"Religious institution" means an establishment which is used primarily for religious services, and related religious activities.

(17)

"School" means any child care facility, or an institution of learning for minors, whether public or private. This definition includes nursery schools, preschools, schools with any of the grades kindergarten through twelfth grade, or any special institution of education for minors, but it does not include vocational or professional institutions of higher education, including a community or junior college, college or university.

(18)

"Semi-nude" means 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 strap devices.

(19)

"Sheriff's department" means and includes the Los Angeles County sheriff's department and the sheriff's department license detail. The sheriff's department shall represent the law enforcement agency of the city.

(20)

"Specified anatomical areas" means and includes any of the following, whether performed directly or indirectly through clothing or other covering:

(A)

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

(B)

Human male genitals in a discernible turgid state, even if completely and opaquely covered;

(C)

Any device, costume or covering that stimulates any of the body parts included in subsections (A) and (B) of this definition.

(21)

"Specified criminal acts" means and includes any of the following:

(A)

Less than two years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, for a misdemeanor offense for sexual crimes against children, sexual abuse, rape, distribution of obscenity or material harmful to minors, prostitution, pandering, pimping, lewd conduct, indecent exposure, or municipal code violations specific to adult businesses;

(B)

Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, for one or more felony convictions for sexual crimes against children, sexual abuse, rape, distribution of obscenity or material harmful to minors, prostitution, pandering, pimping, lewd conduct, indecent exposure, or municipal code violations specific to adult businesses;

(C)

Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, for the conviction of two or more misdemeanor offenses for sexual crimes against children, sexual abuse, rape, distribution of obscenity or material harmful to minors, prostitution, pandering, pimping, lewd conduct, indecent exposure or municipal code violations specific to adult businesses;

(22)

"Specified sexual activities" means and 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 or sodomy;

(C)

Masturbation, actual or simulated; or

(D)

Excretory functions as part of or in connection with any of the other activities described in subsections (A) through (C) of this definition.

(23)

"Substantially enlarged" means a ten percent increase in floor area occupied by the business as it existed on the effective date of this chapter.

(24)

"Transfer of ownership or control of an adult business" means and includes any of the following:

(A)

The sale, lease or sublease of the business;

(B)

The transfer of securities which constitute a controlling financial interest in the business, whether by sale, exchange, or similar means;

(C)

The establishment of a trust, gift or other similar legal devise which transfers ownership or control of the business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control.

(Ord. 539 §2(part), 1999).

(1)

Subject to the provisions of this chapter, adult businesses shall be permitted only in the heavy manufacturing (M-2) zone provided:

(A)

Each adult business, prior to commencement or continuation of such business, must first apply for and receive an adult business permit.

(B)

Each adult business must comply with all applicable development and design standards of the M-2 zone, including parking and signage.

(C)

Each adult business must comply with all distance requirements set forth in this section.

(D)

Each adult business must comply with all operational standards applicable to the use as set forth in this chapter.

(2)

An adult business shall not be established nor located within one thousand five hundred feet of the following:

(A)

Any county or city residential zone;

(B)

Any parcel with a residential use;

(C)

Any religious institution or property zoned, planned or otherwise designated for such use by city action;

(D)

Any school, public park or property zoned, planned or otherwise designated for such use by city action;

(E)

Any boys' club, girls' club, or similar youth organization;

(F)

Any establishment holding a permit/license from the State Alcohol Beverage Control Department;

(G)

Any other establishment permitted/licensed by the city as an adult business.

The uses and zones set forth herein shall be collectively known as "impacted uses."

(3)

For purposes of this section, all distances shall be measured in a straight line, without regard to intervening structures, from the nearest point of the building, or structures in which the adult business is or will be located to the nearest property line of any land use, land use district, or zone described in this section.

(Ord. 539 §2(part), 1999).

(1)

It is unlawful for any person to engage in, conduct, carry on, or to permit to be engaged in, conducted or carried on, in or upon any premises in the city, the operation of an adult business, unless the person first obtains and continues to maintain in full force and effect an adult business permit from the city as required in this chapter.

(2)

It is unlawful for any person to engage in or participate in any live performance involving specified sexual activities or displaying specified anatomical areas in an adult business, unless the person first obtains and continues in full force and effect an adult business performer's permit as required in this chapter.

(Ord. 539 §2(part), 1999).

Any person wishing to operate an adult business shall apply for and submit a completed application for an adult business permit. The adult business shall not be permitted to commence or continue business without the required valid permits and licenses. The fact that an applicant possesses other types of state or city permits or licenses does not exempt the applicant from the requirement of obtaining an adult business permit.

(1)

Application. Applicants for an adult business permit shall file a complete, written, signed and verified application or renewal application on a form provided by the city administrator. Such application shall contain the following:

(A)

If the applicant is an individual, the applicant's legal name, including any aliases, the applicant's residential address (other than post office box), residential telephone number, business address and telephone number;

(B)

If the applicant is a corporation, the corporation shall state the corporation's business address (other than a post office box), and the corporate name as set forth in its articles of incorporation. The corporate applicant shall provide the date of its incorporation, and evidence that the corporation is in good standing under the laws of the State of California. The corporate applicant shall show the name and residence address of each of the officers, directors and each stockholder owning no less than ten percent of the stock of the corporation in addition to the name of the registered corporate agent and the address of the registered office/officer for service of process;

(C)

If the applicant is a partnership, the partnership shall state the partnership's complete name, business address and telephone number, and whether the partnership is general or limited. The partnership shall state the name, residential address and telephone number of each of the partners and a copy of the partnership agreement;

(D)

If the applicant is any other legal entity, the legal entity shall state the name and type of legal entity, the business address and telephone number of the legal entity, the name, address and telephone number of the principals of the legal entity, and a copy of any and all documents creating the legal entity;

(E)

If the applicant intends to operate the adult business under a name other than that of the applicant, he/she must:

(i)

State the adult business's fictitious name;

(ii)

Submit the required registration documents; and

(iii)

Provide the information contained in subsections (1)(A) through (1)(D) of this section, whichever is applicable;

(F)

If the adult business is owned or operated by an individual, he/she must sign, under penalty of perjury, the application for a permit as applicant. If the adult business is owned or operated by a legal entity other than an individual, each individual who has a ten percent or greater interest in the business must sign, under penalty of perjury, the application for a permit as applicant;

(G)

If the applicant is an individual, the applicant shall submit a copy of his/her California DMV identification or driver's license and Social Security number; if the applicant is a corporation, partnership or any other legal

entity, the applicant shall submit a copy of its state and/or federally issued tax identification number;

(H)

The applicant shall submit proof that he/she is eighteen years of age or older to qualify for a permit. If the proposed adult business will sell and serve alcoholic beverages, the applicant shall submit proof that he/she is twenty-one years of age or older to qualify for a permit;

(I)

If the applicant is an individual, the applicant shall submit one two-inch by two-inch (minimum size) portrait photograph, taken within the forty-five days immediately prior to or after the date the application is filed, clearly showing the face of the applicant(s). The applicant shall also provide his/her fingerprints in a form required by the sheriff's department. Any fees for the photograph or fingerprints shall be paid by the applicant;

(J)

A statement detailing the applicant's adult business license or permit history for the five years immediately preceding the date of the filing of the application;

(K)

A statement detailing whether the applicant has ever had an adult business license, permit, or authorization for an adult business denied, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the date, the name of the issuing or denying jurisdiction, and describe in full the reasons for the denial, revocation, or suspension;

(L)

Whether the applicant, or any of the other individuals listed on the application, has been convicted of a specified criminal act, as defined in this chapter, and if so, the specified criminal act involved, the date, place, nature of each conviction or plea of nolo contendere and the identity of the convicting jurisdiction;

(M)

A sketch or diagram showing the interior and exterior configuration of the premises, including a statement of the total floor area occupied by the adult business. The sketch or diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches;

(N)

A description of the type of adult business for which the permit is requested and the proposed address where the adult business will operate, including the names and addresses of the owners and/or lessors of the proposed adult business site. The applicant is prohibited from operating more than one adult business at the same location, building and/or structure;

(O)

Hours of operation of the adult business;

(P)

A diagram of the off-street parking areas and premises entries of the adult business, showing the location of the lighting system;

(Q)

A detailed security plan that describes measures that will be implemented to provide adequate security both within the interior and exterior premises of the business, including the name and address of the security company to provide security services and the number of security guards;

(R)

The name or names of the person or persons operating or having the management or supervision of applicant's business at the proposed location, and the names of all employees, independent contractors and other persons who will be providing services, for any form of compensation, at the adult business;

(S)

For renewal applications, the applicant shall submit an application updating the information in the original application, in the event that the information in the original application has changed, and attaching a copy of the permit to be renewed;

(T)

Authorization by applicant to city, its employees, agents and contractors, for any and all information necessary for the investigation of the application to determine its truthfulness;

(U)

Any other information the sheriff's department shall deem necessary to investigate the applicant and the contents of the application for an adult business permit;

(V)

Each application shall be accompanied by a nonrefundable fee for filing or renewal in an amount determined by resolution of the city council, which fees will be used to defray the costs of investigation, inspection and processing of such application.

(2)

Submission to City Administrator.

(A)

A complete application for a permit or renewal shall be filed with the city administrator. Upon receipt of an application properly filed with the city administrator, the city administrator shall immediately stamp the

application as received and shall thereafter commence an investigation of the applicant and the contents of the application.

(B)

The city administrator shall promptly advise the applicant in writing within two working days of receipt of an application, if the application is incomplete and the reasons the application is incomplete.

(C)

The city administrator shall grant the applicant a ten day extension of time to complete the application as required in this section. The time period for making a decision on the application shall be stayed during the period in which the applicant is granted an extension. Failure to complete the application as required in this chapter within the extension period shall be grounds for denying the application.

(D)

The city administrator shall direct the community development department to post a notice on the property that an application has been filed which is the subject of the applicant's application for an adult business permit.

(3)

Investigation—Time Limits.

(A)

The city administrator and/or his/her designee, including other city departments and the sheriff's department, shall promptly conduct an investigation of the applicant and the application for the proposed adult business permit. Within forty-five days from the date a complete application was filed with the city administrator, the city administrator shall:

(i)

Approve the application and issue a permit; or

(ii)

Conditionally approve the application and issue a thirty day temporary permit; or

(iii)

Deny the application based on one or more of the grounds set forth in this chapter.

(B)

The city administrator shall furnish the applicant with a written notice of his/her decision on the application on the forty-fifth day by mailing such written notice by certified mail, return receipt requested, or by personal service.

(4)

Conditional Approval—Temporary Permit. Within forty-five days from the date a complete application was filed with the city administrator, the city administrator shall issue a thirty day temporary permit if the city administrator's investigation of the applicant and the application for an adult business permit is not completed, and the applicant complies with all provisions of this chapter, and there exists no grounds for denial of the application. The temporary permit shall authorize the applicant to operate an adult business only within the time period indicated on the temporary permit and shall become null and void after the expiration date stated on the temporary permit. The city administrator may extend the temporary permit up to sixty days. Upon expiration of the temporary permit or any extensions thereof, the city administrator shall approve the application and issue a permit or deny the application for a permit based on the grounds set forth in this chapter.

(5)

Basis for Denial of Application. The city administrator shall approve the application or renewal and issue a permit upon findings that the proposed adult business meets all development standards, locational requirements, and operational standards applicable to the adult business, unless it finds that one or more of the following conditions are found to be true:

(A)

That the building, structure, equipment and/or location used by the business for which a permit is required in this chapter does not comply with the requirements and standards of the health, fire, building and safety laws of the State of California and/or of the city;

(B)

That the building, structure, equipment and/or location used by the business for which a permit is required in this chapter does not comply with the zoning laws of the city, including, but not limited to, parking requirements, signage, the development standards of the M-2 zone, the locational requirements and/or the operational standards applicable for the type of adult business set forth in this chapter;

(C)

That the applicant, his or her employee, agent, partner, director, officer, stockholder, operator or manager has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit or in any report or record required to be filed with the city administrator, other departments of the city, or the sheriff's department;

(D)

That the applicant, his or her employee, agent, partner, director, officer, stockholder, operator or manager has had any type of adult business license/permit revoked by any public entity within two years of the date of the application;

(E)

That the applicant is under eighteen years of age or under twenty-one years of age, if the proposed adult business will serve alcoholic beverages;

(F)

The applicant is overdue forty-five days in payment to the city for fees owed by the applicant in relation to the adult business, which is the subject of the application;

(G)

The applicant failed to file a complete application with the city administrator or failed to provide any necessary information to the sheriff's department for the investigation of the applicant and contents of the application;

(H)

The applicant or any other person listed in the application has been convicted of a specified criminal act, as defined in this chapter.

(i)

An applicant who has been convicted of a specified criminal act may qualify for an adult business permit within five years from the date of the conviction. Except if the application follows revocation of a prior permit issued by the city, the applicant may qualify for an adult business permit after two years have elapsed from the effective date of revocation.

(ii)

The fact that a conviction is being appealed shall have no effect on disqualification of the applicant.

(I)

The applicant proposes to operate more than one adult business from the same location, building or structure.

Business License. Once a permit or temporary permit has been issued, the applicant shall obtain and pay the required fees for a business license from the city's business license division. In the case that a temporary permit is issued and the application for an adult business is later denied, the business license becomes null and void, and the applicant shall be entitled to a pro-rated refund on the fees paid for a business license.

Failure to Act on Application. If the city administrator fails to approve, conditionally approve, or deny a permit within forty-five days from the date a complete application was filed with the city administrator, the permit shall automatically issue, subject to all provisions of this chapter.

Duty to Update Information.

(A)

Applicants issued a permit or renewal permit under this chapter shall have a continuing duty to promptly supplement application information required by this chapter in the event that such information changes in any way from what is stated on the original application. The failure to comply with such continuing duty within thirty days from the date of the change, by supplementing the application on file with the city administrator, shall be grounds for revocation or suspension of the adult business permit.

(B)

Applicants issued a permit or renewal permit under this section shall also be required to submit to the city administrator on a quarterly basis the names and addresses of all employees, independent contractors or any other person providing services, for any form of compensation, if any, to the adult business. Failure to provide such quarterly reports shall be grounds for suspension of the adult business permit.

(9)

Prompt Judicial Review. The decision of the city administrator on an application for a permit pursuant to this chapter is considered to be a ministerial act. Issuance or denial of the permit is not subject to administrative appeal. The decision of the city administrator is final and subject to prompt judicial review by a court of competent jurisdiction in accordance with California Code of Civil Procedure, Section 1094.8.

(Ord. 539 §2(part), 1999).

Any person who is a performer in an adult business must apply for an adult business performer's permit. The adult business performer shall not be permitted to engage or participate in any live performance depicting specified anatomical areas or involving specified sexual activities in an adult business until the adult performer's permit is issued. The fact that an applicant possesses other types of state or city permits or licenses does not exempt the applicant from the requirement of obtaining an adult business performer's permit.

(1)

Application. Applicants for an adult business performer's permit shall file a complete, written, signed and verified application or renewal application on a form provided by the city administrator. Such application shall contain the following:

(A)

The applicant's legal name and any other names (including "stage names" and aliases) used by the applicant;

(B)

Age, date and place of birth;

(C)

Present residence address (no post office boxes) and telephone number;

(D)

A copy of the applicant's California DMV identification or driver's license card and Social Security card;

(E)

Satisfactory written proof that the applicant is at least eighteen years of age;

(F)

The name and address of the adult business within the city's limits wherein the applicant will perform;

(G)

The applicant shall submit one two-inch by two-inch (minimum size) portrait photograph, taken within the forty-five days immediately prior to or after the date the application is filed, clearly showing the applicant's face. The applicant shall also provide his/her fingerprints in a form required by the sheriff's department. Any fees for the photograph and fingerprints shall be paid by the applicant;

(H)

A statement detailing the applicant's adult business performer's permit history for the five years immediately preceding the date of the filing of the application;

(I)

A statement detailing whether the applicant has ever had such a license, permit, or authorization for an adult business performer's permit, revoked, or suspended. In the event of any such denial, revocation, or suspension, state the date, the name of the issuing or denying jurisdiction, and describe in full the reasons for the denial, revocation, or suspension;

(J)

Whether the applicant has been convicted of a specified criminal act, as defined in this chapter, and if so, the specified criminal act involved, the date, place, and nature of each conviction or plea of nolo contendere and identify the convicting jurisdiction;

(K)

For renewal applications, the applicant shall submit an application updating the information in the original application, in the event the information in the original application has changed, and attaching a copy of the permit to be renewed;

(L)

The applicant shall sign the application under penalty of perjury;

(M)

Authorization by applicant to city, its employees, agents and contractors, for any and all information necessary to the investigation of the application to determine its truthfulness;

(N)

Any other information the sheriff's department shall deem necessary to investigate the applicant and the contents of the application;

(O)

Each application shall be accompanied by a nonrefundable fee for filing or renewal in the amount to be determined by resolution of the city council, which fees will be used to defray the costs of investigation and processing of such application.

(2)

Submission to City Administrator.

(A)

A complete application for a permit or renewal shall be filed with the city administrator. Upon receipt of a complete application properly filed with the city administrator, the city administrator shall immediately stamp the application as received and shall immediately thereafter commence an investigation of the applicant and the contents of the application.

(B)

The city administrator shall promptly advise the applicant in writing within two working days of receipt of the application if the application is incomplete and the reasons the application is incomplete.

(C)

The city administrator shall grant the applicant a ten day extension of time to complete the application in a manner required by this section. The time period for making a decision on the application shall be stayed during the period in which the applicant is granted an extension. Failure to complete the application as required in this section within the extension period shall be grounds for denying the application.

(3)

Temporary Permit. At the time a complete application for an adult business performer's permit is filed with the city administrator, the city administrator shall immediately issue a forty-five day temporary permit while the city administrator's investigation of the applicant and the contents of the application is being conducted. The temporary permit shall authorize the applicant to perform in a permitted adult business only within the time period indicated on the temporary permit and shall become null and void after the expiration date stated on the temporary permit. The city administrator may extend the temporary permit up to sixty days.

(4)

Investigation—Time Limits.

(A)

The city administrator, and/or his/her designees, including city departments and the sheriff's department, shall promptly conduct an investigation of the applicant and the contents of the application for the proposed adult business performer's permit. Within forty-five days from the date a complete application for a permit is filed with the city administrator, the city administrator shall:

(i)

Approve the application and issue a permit; or

(ii)

Conditionally approve the application and extend the temporary permit for an additional thirty days if the investigation of the applicant or the contents of the application is not completed, and no grounds exist to deny the application; or

(iii)

Deny the application based on one or more of the grounds set forth in this chapter.

(B)

The city administrator shall furnish the applicant with a written notice of his/her decision on the application on the forty-fifth day by mailing such written notice by certified mail, return receipt requested, or by delivering the written notice by personal service.

(5)

Decision on Application. The city administrator shall approve the application or renewal and issue a permit upon findings that the application meets all requirements of this chapter, unless one or more of the following conditions are found to be true:

(A)

The applicant has knowingly made any false, misleading or fraudulent statement of material fact in the application for a permit or in any report or record required to be filed with the city administrator, other departments of the city, or the sheriff's department;

(B)

The applicant has had any type of adult business performer's license/permit revoked by any public entity within two years of the date of the application;

(C)

The adult business performer's permit is to be used for performing in an adult business prohibited by state or city law;

(D)

The applicant is under eighteen years of age;

(E)

The applicant failed to file a complete application with the city administrator or failed to provide any necessary information to the sheriff's department for the investigation of the applicant;

(F)

That the applicant has been convicted of any specified criminal act, as defined in this chapter;

(i)

An applicant who has been convicted of the above described specified criminal acts may qualify for an adult business performer's permit within five years from the date of the conviction of the specified criminal act. Except if the application follows a revocation of a prior permit issued by the city, the applicant may qualify for an adult business or performer's permit after two years have elapsed from the effective date of the revocation.

(ii)

The fact that a conviction is being appealed shall have no effect on disqualification of the applicant.

(G)

The applicant is overdue forty-five days in payment to the city for fees owed by the applicant in relation to the adult business performer's permit, which is the subject of the application;

(6)

Business License. Once a permit or temporary permit has been issued, the applicant shall obtain and pay the required fees for a business license from the city's business license division. In the case that a temporary permit is issued and the application for an adult business performer's permit is later denied, the business license becomes null and void, and the applicant shall be entitled to a pro-rated refund on the fees paid for a business license.

(7)

Failure to Act on Application. If the city administrator fails to approve or deny the application for an adult performer's permit, or conditionally approve the application by issuing an extension of the temporary permit, within forty-five days from the date a complete application was filed with the city administrator, the permit shall automatically issue, subject to all provisions of this chapter.

(8)

Duty to Update Information. Applicants issued a permit or renewal permit under this chapter shall have a continuing duty to promptly supplement application information required by this chapter in the event that such information changes in any way from what is stated on the original application. The failure to comply with such continuing duty within thirty days from the date of the change, by supplementing the application

on file with the city administrator, shall be grounds for revocation or suspension of the adult business permit.

(9)

Prompt Judicial Review. The decision of the city administrator on an application for a permit pursuant to this chapter is considered to be a ministerial act. Issuance or denial of the permit is not subject to administrative appeal. The decision of the city administrator is final and subject to prompt judicial review by a court of competent jurisdiction in accordance with California Code of Civil Procedure, Section 1094.8.

(Ord. 539 §2(part), 1999).

(a)

An operator of an adult business shall permit representatives of the sheriff's department, health department, fire department, code enforcement, city business license division, city administrator, or other city departments or agencies to inspect the premises of an adult business, on an unscheduled basis, for the purpose of verifying compliance with the law, at any time it is occupied or opened for business.

(b)

An operator of an adult business or his or her agent or employee is in violation of the provisions of this chapter if he/she refuses to permit such lawful inspection of the premises of the adult business at any time it is occupied or opened for business.

(c)

Failure to permit official inspection of the permitted premises of the adult business shall be grounds for suspension or revocation of the adult business permit.

(Ord. 539 §2(part), 1999).

(1)

A permit for an adult business or performer's permit shall expire one year from the date of issuance, and may be renewed only by making an application as provided in this chapter. Application for renewal shall be made at least sixty days before the expiration date, and when made less than thirty days before the expiration date, the applicant for renewal shall be issued a temporary permit after the expiration of the permit, pending consideration of the renewal request.

(2)

If the city administrator denies renewal of the permit on one or more of the grounds set forth in Section 5.58.050(5) or Section 5.58.060(5), whichever is applicable, the applicant shall not be issued a permit under this chapter for one year from the date of denial.

(Ord. 539 §2(part), 1999).

An adult business permit or an adult business performer's permit, including temporary permits, may be suspended or revoked prior to its expiration date in accordance with the procedures and standards of this section.

(1)

Notice. On determining that grounds for permit suspension or revocation exist, the city administrator shall furnish a written notice of the proposed suspension or revocation to the permittee. Such notice shall:

(A)

Set forth the time and place of the hearing;

(B)

Set forth the ground or grounds upon which the hearing is based and the pertinent statutory authority, if any;

(C)

Set forth a brief statement of the factual matters in support of the proposed suspension or revocation;

(D)

Mail the written notice, certified mail, return receipt requested, addressed to the permittee at the address stated in the application for a permit, or delivered to the permittee personally, at least ten days prior to the hearing date.

(2)

Hearing. Suspension or revocation hearings shall be conducted by the City Administrator in accordance with procedures established in this section which shall include the following:

(A)

All parties involved shall have:

(i)

The right to offer testimonial, documentary, and tangible evidence bearing on the issues;

(ii)

The right to be represented by legal counsel or other representative;

(iii)

The right to confront and cross-examine witnesses.

(B)

Any relevant evidence may be admitted during the hearing that is the sort of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs.

(C)

The city administrator may continue any hearing under this section for a reasonable time at the request of a party or a witness.

(3)

Notice of Decision. After notice and hearing, the city administrator shall provide the permittee with written notice of decision. The notice of decision shall set forth in detail the basis for the city administrator's decision. The notice of decision shall be mailed to the permittee certified mail, return receipt requested, or personally delivered to the permittee within ten days of the date of the hearing.

(4)

Grounds for Suspension. The city administrator shall suspend an existing adult business permit or adult business performer's permit, if based upon the evidence, it is found that one or more of the following conditions exist:

(A)

The building, structure, equipment and/or location used by the business fails to comply with the requirements of the health, zoning, fire, building and safety laws of the State of California, or of the ordinances of the city of Commerce, including violations of any provisions of this chapter and a citation is issued for the violation.

(i)

In the event of a violation of such city or state statute, code, ordinance or regulation, the city administrator shall allow the permittee a seven day period in which to correct the violation.

(ii)

If the permittee fails to correct the violation before the expiration of the seven day period, the permit shall be suspended until the violation in question is corrected.

(B)

The permittee is cited for failure to update the original application for a permit with new or changed information within thirty days from the date of the change by supplementing the application on file with the city administrator.

(i)

In the event the permittee fails to update his/her application for a permit with new or changed information within the thirty day deadline, the city administrator shall allow the permittee a seven day period in which to update the original application upon which the permit was issued.

(ii)

If the permittee fails to supplement the application for a permit with new or changed information before the expiration of the seven day period, the permit shall be suspended until the application is updated.

(C)

The permittee is cited for failure to submit to the city administrator quarterly reports of all employees, independent contractors or any other persons providing services to the adult business for any form of compensation.

(i)

In the event the permittee fails to submit his/her quarterly reports, the city administrator shall allow the permittee a seven day period in which to submit said reports.

(ii)

If the permittee fails to submit the quarterly reports before the expiration of the seven day period, the permit shall be suspended until the reports are submitted.

(D)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager refused to allow the lawful inspection of the premises pursuant to Section 5.58.070 of this chapter. Suspension shall continue until the premises are permitted to be inspected pursuant to Section 5.58.070.

(E)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager knowingly employed a person who did not have a valid license issued pursuant to this chapter. A suspension of thirty days shall be imposed.

(F)

The permittee engaged in permit transfer in violation of Section 5.58.100(a). The suspension shall remain in effect until the applicable requirements for obtaining an adult business permit as set forth in Section 5.58.050 have been met.

(G)

The permittee, employee, agent, partner, director, officer, stockholder, operator or manager operated the adult business in violation of the hours of operation established in this chapter and a citation is issued for the violation. A suspension of thirty days shall be imposed.

(5)

Grounds for Revocation.

(A)

The permittee, employee, agent, parties, director, officer, stockholder or operator is cited for violating any state or city statute, code, ordinance or regulation pertaining to adult business relating to fire, building and safety, health, zoning or adult businesses on three or more occasions within a twelve month period;

(B)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager has knowingly made any false, misleading or fraudulent statements of material facts in the application for a permit, or in any report or record required to be filed with the city administrator or other department of the city;

(C)

The permittee fails to supplement the original application with new or changed information on three or more occasions within a twelve month period;

(D)

The permittee, employee, agent, partner, director, officer, stockholder or operator has had any type of adult business permit or performer's permit revoked by any other public entity within two years of the date the permit was issued;

(E)

The permittee has been convicted of one or more misdemeanors or felonies by a court of competent jurisdiction involving sexual crimes against children, sexual abuse, rape, distribution of obscenity or material harmful to minors, prostitution, pandering, pimping, lewd conduct, indecent exposure, or municipal code violations specific to adult businesses;

(F)

The permittee's employee, agent, partner, director, officer, stockholder, operator or manager has been convicted of one or more misdemeanors or felonies in a court of competent jurisdiction involving sexual crimes against children, sexual abuse, rape, distribution of obscenity or material harmful to minors, prostitution, pandering, pimping, lewd conduct, indecent exposure, or municipal code violations specific to adult businesses;

(G)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager knowingly allowed an adult business to be used as a place where sexual intercourse, sodomy, oral copulation, masturbation, prostitution or other lewd acts occur or have occurred and a conviction resulted from such unlawful conduct;

(H)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager of the adult business has employed minors or allowed minors to operate in the adult business or admitted minors in or on the premises of the adult business;

(I)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager permitted the operation of more than one adult business within the same building, structure or portion thereof containing another adult business;

(J)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager failed to cease operation or otherwise bring into full compliance with the requirements of this chapter a nonconforming adult business within the required period, unless the planning commission has granted the permittee an extension of time;

(K)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager was cited for failing to properly maintain and provide adequate sanitary controls of the interior or exterior premises of the adult business on three or more occasions within a six month period;

(L)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager has knowingly allowed possession, use or sale of controlled substances in or on the premises and a conviction resulted from such unlawful conduct;

(M)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager has knowingly allowed prostitution to occur in or on the premises and a conviction resulted from said unlawful conduct;

(N)

The permittee, his/her employee, agent, partner, director, officer, stockholder, operator or manager has knowingly permitted acts of sexual intercourse, sodomy, oral copulation, masturbation, to occur in or on the premises and a conviction resulted from such unlawful conduct;

(O)

The permittee operated an adult business when the adult business permit had been suspended by the city administrator;

(6)

Period of Revocation. Once a permit is revoked, the revocation shall continue for two years and the permittee shall not qualify for an adult business or performer's permit for two years from the date the

revocation became effective.

(7)

Prompt Judicial Review. The decision of the city administrator following a suspension or revocation hearing is considered to be a ministerial act. The decision suspending or revoking a permit issued pursuant to this chapter is not subject to administrative appeal. The decision of the city administrator is final and subject to prompt judicial review by a court of competent jurisdiction in accordance with California Code of Civil Procedure, Section 1094.8.

(Ord. 539 §2(part), 1999).

(a)

A permittee shall not transfer an adult business permit or an adult business performer's permit to another, nor shall a permittee operate an adult business under the authority of a permit at any place other than the address designated on the application and the permit. Any adult business permit or adult business performer's permit that is transferred to any other person or to another location shall be grounds for suspension of the permit.

(b)

A permittee shall not transfer ownership or control of an adult business to another person, unless and until the transferee applies for an adult business permit to the city administrator by filing an application for an adult business permit with the city administrator in accordance with Section 5.58.050, pays the required application fees, and the city administrator determines that the applicant complies with all requirements of this chapter.

(c)

No permit may be transferred when the city administrator has notified the permittee that the permit has been or may be suspended or revoked.

(Ord. 539 §2(part), 1999).

(a)

Every adult business shall display at all times during business hours the permit issued pursuant to the provisions of this chapter for such adult business in a conspicuous place so that the same may be readily seen by all persons entering the adult business establishment.

(b)

All adult business performers shall have the adult business performer's permit readily available for inspection at all times in which the performer is on the premises of the adult business.

(c)

All employees, independent contractors, or other persons providing services on the premises shall have readily available for inspection at all times a valid California DMV identification card or driver's license.

(Ord. 539 §2(part), 1999).

(1)

The following operational and performance standards shall apply to all adult business issued a permit, including temporary permits, pursuant to this chapter.

(A)

Maximum Occupancy. Maximum occupancy load, fire exits, aisles and fire equipment for all adult businesses shall be regulated, designed and provided in accordance with the fire department, building and safety regulations and standards adopted by the city of Commerce.

(B)

Exterior Illumination. All off-street parking areas and exterior premises entries of the adult business shall be illuminated from dusk to closing hours with a lighting system which provides an average maintained horizontal illumination of one footcandle of light on the parking surface and/or walkways. The lighting shall be shown on the required sketch or diagram of the premises submitted with the application for a permit.

(C)

Interior Illumination. All interior areas of the adult business shall be illuminated at a minimum of the following footcandles, minimally maintained and evenly distributed evenly at ground level:

(D)

Indoor Areas. The interior of the premises shall be configured in such a manner that there is an unobstructed view of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms, from the front entrance of the adult business.

(E)

Exterior Public View. No adult business shall be operated in any manner that permits the observation of any material or activities depicting, describing or relating to specified sexual activities or specified anatomical areas from any public right-of-way or from any location outside the building or area of such establishment.

(i)

This provision shall apply to any display, decoration, sign, show window or other opening. All exterior windows shall be covered with opaque covering at all times.

(ii)

No exterior door or window on the premises shall be propped or kept open at any time while the business is open.

(F)

Restroom Facilities. The adult business shall provide and maintain separate restroom facilities for male patrons and employees, and female patrons and employees. Male patrons and employees shall be prohibited from using the restroom(s) for females, and female patrons and employees shall be prohibited from using the restroom(s) for males or male patrons, except to carry out duties of repair, maintenance and cleaning of the restroom facilities.

(i)

The restrooms shall be free from any materials depicting specified sexual activities or specified anatomical areas.

(ii)

Restrooms shall not contain television monitors or other motion picture or video projection, recording or reproduction equipment.

(iii)

The foregoing provisions of this subsection shall not apply to an adult business, which does not or is not required to provide restroom facilities to its patrons or the general public.

(G)

Noise. The premises within which the adult business is located shall provide sufficient sound-absorbing insulation so that noise generated inside the adult business shall not be audible anywhere on any adjacent property or the public right-of-way or within any other building or other separate unit within the same building.

(H)

Hours of Operation. Except for those adult businesses regulated by the California Department of Alcoholic Beverage Control because they serve alcohol, an adult business shall be open for business only between

the hours of eight a.m. and midnight on any particular day.

(I)

Parking. All adult businesses shall comply with the parking requirements contained in the Commerce zoning code.

(J)

Signage. All adult businesses shall comply with the requirements governing signage contained in the Commerce zoning code.

(K)

Age Requirement. No person under the age of eighteen years shall be permitted in or on the premises of an adult business at any time. The building entrance(s) of an adult business shall be clearly and legibly posted with a sign indicating that persons under eighteen years of age are prohibited from entering the premises. The sign shall be constructed and posted to the satisfaction of the community development director or his/her designee.

(L)

Security. Adult businesses shall employ licensed security guards in order to maintain the public peace and safety, based upon the following standards:

(i)

Any adult business shall maintain at least one security guard on the premises during operating hours.

(ii)

The sheriff's department shall have the discretion to impose any other security measures, which it deems to be necessary in preserving the public safety.

(iii)

Security guards shall be charged with preventing violations of law and enforcing compliance by patrons of the requirements of these regulations. Security guards shall be uniformed in such a manner so as to be readily identifiable as a security guard by the public and shall be duly licensed as a security guard as required by applicable provisions of state law.

(iv)

No security guard required pursuant to this subsection shall act as a door person, ticket seller, ticket taker, admittance person, manager, or sole occupant of the manager's station while acting as a security guard.

(v)

Security cameras shall be maintained in each area of the interior and exterior premises of the adult business as determined by the sheriff's department.

(2)

In addition to the aforementioned operational standards set forth in this section, the following additional operational standards shall apply:

(A)

Adult Arcades, Adult Motion Picture Theater, Adult Bookstore, Adult Novelty Store and Adult Video Store.

(i)

The interior of the premises shall be configured in such a manner that there is an unobstructed view of every area of the premises to which any patron is permitted access for any purpose, excluding restrooms, from the front entrance of the adult business.

(ii)

The viewing rooms or booths shall remain unobstructed by any doors, walls, curtains, merchandise, display racks, or other materials at all times. No patron is permitted access to any area of the premises which has been designated as an area in which patrons are not permitted.

(iii)

The walls or partitions between viewing rooms or booths shall be maintained in good repair at all times, with no holes or transparent material between any two such rooms or booths such as would allow viewing from one room or booth into another, or as to allow physical contact of any kind between the occupants of any two such rooms or booths.

(iv)

No viewing rooms or booths may be occupied by more than one person at.any one time.

(v)

The floors, seats, walls and other interior portions of all viewing rooms or booths shall be maintained clean and free from waste and bodily secretions.

(vi)

At least one employee shall be on duty and situated in the area designated for the manager at all times that any patron is present inside the premises.

(vii)

Security cameras shall be maintained in each area of the interior premises of the adult arcade where the viewing rooms are located.

(viii)

 Customers, patrons, or visitors shall not be allowed to stand idly by or loiter in the vicinity of any such viewing rooms, booths or restroom areas, or from remaining in the common area of such business, unless

he/she is actively engaged in shopping for or viewing the products available on display for purchaser viewing.

(ix)

Signs prohibiting loitering shall be posted in prominent places in and near the viewing rooms or booths.

(B)

Adult Theaters and Cabarets-Adult Live Entertainment. The following additional requirements shall pertain to adult businesses providing live entertainment such as adult theaters and cabarets, depicting specified anatomical areas or involving specified sexual activities, except for businesses regulated by the Alcoholic Beverage Control Commission:

(i)

No person shall perform live entertainment for patrons of an adult business, except upon a stage at least eighteen inches above the level of the floor which is separated by a distance of at least ten feet from the nearest area occupied by patrons. No patron shall be permitted within ten feet of the stage while the stage is occupied by an adult business performer.

(ii)

Fixed rail(s) at least thirty inches in height shall be maintained establishing the separations between performers and patrons required by this subsection.

(iii)

The adult business shall provide separate dressing room facilities for performers, which are exclusively dedicated to the performers' use. No performer shall be permitted to use the restrooms used by patrons of the adult business as a dressing room.

(iv)

The adult business shall provide access for performers between the stage and the dressing rooms, which is completely separate from the access used by patrons of the adult business. If such separate access is not physically feasible, the adult business shall provide a minimum three foot wide walk aisle for performers between the dressing room area and the stage, with a railing, fence or other barrier separating the patrons and the performers capable of (and which actually results in) preventing any physical contact between patrons and performers.

(v)

The adult business shall provide an entrance/exit for performers which is separate from the entrance/exit used by patrons of the adult business.

(vi)

No performer, either before, during or after performances, shall have physical contact with any patron and no patron shall have physical contact with any performer either before, during or after performances by

such performer. This prohibition includes "couch," "lap," or "straddle" dances with a patron. This subsection shall only apply to physical contact in or on the premises of the adult business.

(vii)

No patron shall directly pay or give any gratuity to any performer, and no performer shall solicit or receive any pay or gratuity from any patron of the adult business.

(viii)

 There shall be signs posted in the interior of the premises where live entertainment takes place advising patrons that it is unlawful to directly pay or give any gratuity to any performer.

(ix)

No owner or other person with managerial control over an adult business shall permit any person on the premises of the adult business to engage in a live showing of the human male or female genitals, pubic area or buttocks with less than a fully opaque coverage, and/or the female breast with less than a fully opaque coverage over any part of the nipple or areola and/or covered male in a discernibly turgid state. This provision may not be complied with applying an opaque covering simulating the appearance of the specified anatomical part required to be covered.

(C)

Outcall Adult Businesses.

(i)

An outcall adult business shall maintain a dispatch log, which provides the following information:

a.

The name and business address of the outcall adult business;

b.

The name and address of the adult business performer dispatched and the date dispatched;

c.

The date the adult business performer will provide services;

d.

The time the adult business performer will provide the services;

e.

The complete address where the adult business performer shall provide the services;

f.

The duration of the services to be provided by the adult business performer;

g.

The name and address of the contact person requesting the services of the adult business performer;

h.

The type of services to be performed by the adult business performer;

i.

The amount charged for the services of the adult business performer;

j.

The names and addresses of any and all bodyguards, employees, independent contractors or any other person accompanying the adult business performer to the location dispatched where services will be rendered.

k.

The dispatch log shall be current and made available for inspection by the city administrator, or his/her designee, including the sheriff's department.

(ii)

An adult business performer employed as an employee, and an independent contractor of an outcall adult business shall maintain a performer's log, which provides the following information:

a.

The name and business address of the outcall adult business;

b.

The name and address of the adult business performer dispatched by the outcall adult business;

c.

The date and time the adult business performer was dispatched;

d.

The date the adult business performer will provide services;

e.

The time the adult business performer will provide the services;

f.

The complete address where the adult business performer shall provide the services;

g.

The duration of the services to be provided by the adult business performer;

h.

The name and address of the contact person requesting the services of the adult business performer;

i.

The type of services to be provided by the adult business performer;

j.

The amount charged for the services of the adult business performer;

k.

The names and addresses of any and all bodyguards, employees, independent contractors or any other person accompanying the adult business performer to the location dispatched where services will be rendered.

l.

The performer's log shall be current and made available for inspection by the city administrator, or his/her designee, including the sheriff's department.

(Ord. 539 §2(part), 1999).

If the city administrator believes that a regular and substantial portion of a business operating within the city meets the definition of an adult business as defined in this chapter, the city administrator may require that the business make available for inspection by the authorized representative of the city, at reasonable times and places, complete records of the business transactions, including its sales, receipts, purchases and other expenditures.

(Ord. 539 §2(part), 1999).

(1)

Any adult business lawfully operating on the effective date of this chapter, which does not conform with the provisions of this chapter shall be deemed a nonconforming use.

(A)

Any adult business lawfully operating on the effective date of this chapter, which becomes nonconforming due to the locational requirements contained in Section 5.58.030 shall cease operation, or otherwise be brought into full compliance with the locational requirements, no later than June 30, 2002.

(B)

Any adult business lawfully operating on the effective date of this chapter, which becomes nonconforming due to the operational and performance standards contained in Section 5.58.120 shall cease operation, or otherwise be brought into full compliance with the development standards and with the operational and performance standards contained in Section 5.58.120, no later than one year from the effective date of this chapter.

(2)

The planning commission may extend the deadlines contained in subsections (1)(A) and (1)(B) of this section for no more than one additional year upon a showing of extreme financial hardship. Extreme financial hardship is defined as the recovery of the initial financial investment in the nonconforming use, unless sooner terminated for any reason or voluntarily discontinued for a period of thirty days or more.

(3)

An application for an extension of the deadlines contained in subsections (1)(A) and (1)(B) of this section shall be filed with the city administrator at least thirty days before the expiration of the deadlines in subsections (1)(A) and (1)(B) of this section. The planning commission, in considering such an application for an extension of the deadlines contained in subsections (1)(A) and (1)(B) of this section, shall consider the following criteria in making a determination:

(A)

The owner's financial investment in the business as compared with the revenue derived from the business or the period of time the owner has had to recoup his or her financing investment prior to the effective date of this chapter.

(B)

The present actual and depreciated value of permanent fixtures.

(C)

The applicable federal tax depreciation schedule for such fixtures.

(D)

The remaining useful life of the permanent fixtures.

(E)

The remaining term of any lease or rental agreement under which the business is operating on the date this chapter is adopted.

(F)

Whether the business can be brought into conformance with all applicable requirements of this chapter without requiring to be relocated.

(G)

Whether the business must be discontinued at the preset location or in order to comply with the requirements of this chapter and, if such relocation is required:

(H)

The potential availability of relocation sites; and

(I)

The ability of the owner to change the business to a conforming use.

(4)

Such nonconforming uses shall not be increased, enlarged, extended or altered except that the use may be changed to a conforming use.

(5)

Such nonconforming uses shall terminate if the use is discontinued for a period of thirty days or more. This subsection shall not apply to uses discontinued due to suspensions of permit for thirty days or more.

(6)

An adult business lawfully operating as a conforming use is not rendered a nonconforming use by the subsequent location of a religious institution, school, public park, business with an ABC license, boys' and girls' club, residential zone, or residential use within five hundred feet of the adult business. This provision does not apply when an application for a permit is submitted after a permit has expired or has been revoked.

(Ord. 539 §2(part), 1999).

Any person, whether as principal, agent, employee or otherwise, violating or causing the violation of any of the provisions of this chapter shall be guilty of a misdemeanor, and any conviction thereof shall be punishable by a fine of not more than two thousand five hundred dollars or by imprisonment for not more than six months, or by both such fine and imprisonment.

(a)

Nothing in this chapter shall prevent or restrict the city from taking such other lawful action in any court of competent jurisdiction as is necessary to prevent or remedy any violation or noncompliance. Such other lawful actions shall include, but shall not be limited to, an equitable action for injunctive relief or an action at

law for damages. If an injunction must be sought, attorney's fees and costs will be assessed at the discretion of the court against the adult business.

(b)

Nothing in this section shall be construed to prohibit the city from prosecuting any violation of this chapter by means of code enforcement established pursuant to the authority as provided by the laws of the State of California and the city of Commerce.

(c)

Any violation of the provisions of this chapter shall constitute a separate offense for each and every day during which such violation is committed or continued.

(Ord. 539 §2(part), 1999).

(a)

It is unlawful for any permittee, manager, operator, or other person in charge of any adult business to employ, or permit to operate in the adult business any person who is not at least eighteen years of age.

(b)

It is unlawful for any permittee, manager, operator, or other person in charge of an adult business to permit to enter, or remain within the adult business, any person who is not at least eighteen years of age.

(Ord. 539 §2(part), 1999).

It is unlawful for any owner, operator, manager or permittee in charge of or in control of an adult business which provides live entertainment depicting specified sexual activities or specified anatomical areas to allow any person to perform such entertainment who is not in possession of a valid, unrevoked adult business performer's permit.

(Ord. 539 §2(part), 1999).

In addition to the penalties designated in this chapter, any adult business that is operating in violation of this chapter or any provision thereof is declared to constitute a public nuisance and, as such, may be abated or enjoined from further operation.

(Ord. 539 §2(part), 1999).

The city and its designee, the sheriff's department and all other departments and agencies and all other city officers, agents and employees, charged with enforcement of state and local laws and codes shall be

immune from prosecution, civil or criminal, for reasonable, good faith trespass upon an adult business while acting within the scope of authority, conferred by this chapter.

(Ord. 539 §2(part), 1999).

The provisions set forth in this chapter are not intended to be exclusive and compliance therewith shall not excuse noncompliance with any other ordinances or regulations pertaining to the operation of adult businesses as adopted by the city council of the city of Commerce.

(Ord. 539 §2(part), 1999).

If any city ordinance or regulation or any part thereof, is found in conflict with the provisions of this chapter, the provisions of this chapter shall apply.

(Ord. 539 §2(part), 1999).

If any section, subsection, subdivision, paragraph, sentence, clause, or phrase in this chapter or any part thereof is for any reason, held to be unconstitutional or invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter or any part thereof. The city council declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause, or phrase thereof irrespective of the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses, or phrases be declared unconstitutional, or invalid, or ineffective.

(Ord. 539 §2(part), 1999).