§ 19.62

This Chapter provides locational and operational standards for adult business uses.

The provisions in this Chapter shall apply to adult business uses where allowed in compliance with Article 2 (Zones, Allowable Uses, and Development Standards) and the provisions and standards specified in this Chapter.

A.

To regulate the location and operation of adult businesses. The Council finds that it is necessary and appropriate to amend the Municipal Code to add a Chapter, entitled "Adult Business Uses" to regulate the location and operation of adult businesses as that term is defined in this Development Code in order to protect the public health, safety, and welfare of the City of Duarte and its residents by:

1.

Mitigating and reducing the judicially recognized potential adverse secondary effects of adult businesses, including but not limited to crime, the prevention of blight in neighborhoods, and the increased threat of the spread of sexually transmitted diseases;

2.

Protecting the quality of life and neighborhoods in the City, the City's retail and commercial trade, and local property values, and minimizing the potential for nuisances related to the operation of adult businesses; and

3.

Protecting the peace, welfare, and privacy of persons who own, operate, and/or patronize adult businesses.

B.

Studies concerning the adverse secondary effects of adult businesses in other cities.

The Council, in adopting this Chapter, takes legislative notice of the existence and content of the following studies concerning the adverse secondary effects of adult businesses in other cities: Adams County, Colorado (1990); Amarillo, Texas, Planning Department (1977); Austin, Texas, Office of Land Development Services (1986); Beaumont, Texas (1982); Cleveland, Ohio (1977); Dallas, Texas (1997) and El Paso, Texas (1986); Garden Grove, California (1991); Houston, Texas, Council Report (1983 and 1997); Indianapolis, Indiana, Department of Metropolitan Development (1984); Los Angeles, California, Department of City Planning (1977); Minnesota Crime Prevention Center, Inc., Minneapolis (1980); New York, New York (1994); Newport News, Virginia (1996); Phoenix, Arizona (1979); Oklahoma City, Oklahoma (1986); Seattle, Washington, Department of Construction and Land Use (1989); Times Square, New York City (1994); Tucson, Arizona (1990); and Whittier, California (1978).

2.

The studies and their summaries are available for public review in the City Clerk's office.

3.

The Council finds that these studies are relevant to the problems addressed by the City in enacting this Chapter to regulate the adverse secondary effects of adult businesses and more specifically finds that these studies provide convincing evidence that:

a.

There is substantial evidence that an increase in crime tends to accompany, concentrate around, and be aggravated by adult businesses, including but not limited to an increase in the crimes of narcotics distribution and use, prostitution, pandering, and violence against persons and property. The studies from other cities establish by convincing evidence that adult businesses that are not regulated as to location and operating standards often have a deleterious effect on nearby businesses and residential areas, causing, among other adverse secondary effects, an increase in crime and a decrease in property values.

b.

Regulations for adult businesses should be developed to prevent deterioration and/or degradation of the vitality of the community before the problem exists, rather than waiting for problems to be created.

C.

Council does not intend to suppress or infringe upon any expressive activities protected by the First Amendment.

1.

In developing this Chapter, the Council is mindful of legal principles relating to regulation of adult businesses, and the Council does not intend to suppress or infringe upon any expressive activities protected by the First Amendment of the United States and California Constitutions but instead desires to enact reasonable time, place, and manner regulations that address the adverse secondary effects of adult businesses.

The Council has considered decisions of the United States Supreme Court regarding local regulation of adult businesses, including but not limited to: City of Los Angeles v. Alameda Books, 122 S.Ct. 1728 (2002); City of Erie v. Pap's A.M. ("Kandyland"), 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); and Young v. American Mini Theaters, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); decisions of the United Stated Court of Appeals for the Ninth Circuit, including but not limited to: Gammoh v. City of La Habra (9th Cir. 2005) 395 F.3d 1114; World Wide Video of Washington, Inc. v. City of Spokane, 2004 WL 1171686 (9th Cir.(May 2004)); Diamond v. City of Taft, 215 F.3d 1052 (9th Cir. 2000), cert. denied 531 U.S. 1072 (2001); Isbell v. City of San Diego, 258 F.3d 1108 (9th Cir. 2001); Young v. City of Simi Valley, 216 F.3d 807 (9th Cir. 2000), cert. denied 531 U.S. 1104 (2001); Lim v. City of Long Beach, 217 F.3d 1050 (9th Cir. 2000), cert. denied 121 S.Ct. 1189 (2001); Alameda Books v. City of Los Angeles, 222 F.3d 719 (9th Cir. 2000), cert. granted 121 S.Ct. 1223 (2001); Baby Tam & Co., Inc. v. City of Las Vegas ("Baby Tam I"), 154 F.3d 1097 (9th Cir. 1998); Baby Tam & Co., Inc. v. City of Las Vegas ("Baby Tam II"), 199 F.3d 1111 (9th Cir. 2000); Baby Tam & Co., Inc. v. City of Las Vegas ("Baby Tam III"), 247 F.3d 1003 (9th Cir. 2001); 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir. 1999); Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993), cert. denied 511 U.S. 1030 (1994); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998), cert. denied 529 U.S. 1053 (2000); several California cases, including but not limited to: Tily B., Inc. v. City of Newport Beach, 69 Cal.App.4th 1 (1998); City of National City v. Wiener, 3 Cal.4th 832 (1993), cert. denied 510 U.S. 824; People v. Superior Court (Lucero) 49 Cal.3d 14 (1989); Department of Alcoholic Beverage Control v. Alcoholic Beverage Appeals Bd. of California ("Vicary") 99 Cal.App.4th 880 (2002); and City of Vallejo v. Adult Books, 167 Cal.App.3d 1169 (1985), cert. denied 475 U.S. 1064 (1986); and other federal cases, including but not limited to: Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995); Mitchell v. Commission on Adult Entertainment, 10 F.3d 123 (3rd Cir. 1993); Lakeland Lounge v. City of Jacksonville, 973 F.2d 1255 (5th Cir. 1992), cert. denied 507 U.S. 1030 (1993); International Eateries v. Broward County, 941 F.2d 1157 (11th Cir. 1991), cert. denied 503 U.S. 920 (1992); and Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986).

3.

Copies of the decisions are available for public review in the City Clerk's office.

D.

Experiences of other cities. The Council further finds the following, based in part upon its understanding of the documents, including but not limited to the experiences of other cities including the City of Arcadia, (as a result of its experience with including the undercover reports from the police officers at the Golden Eyes and Taboo adult businesses), the City of Newport Beach, the declarations of police officers in other jurisdictions specifying their experiences, and judicial decisions in the public record:

1.

Evidence indicates that some dancers, entertainers, models, performers, and other persons who publicly perform specified sexual activities or publicly display specified anatomical areas in adult businesses (collectively referred to as "performers") have been found to engage in sexual activities with patrons of adult businesses on the site of the adult business.

2.

Evidence has demonstrated that performers employed by adult businesses have been found to offer and provide private shows to patrons who, for a price, are permitted to observe and participate with the performers in live sex shows.

3.

Evidence indicates that performers at adult businesses have been found to engage in acts of prostitution with patrons of the establishment.

4.

Evidence indicates that fully enclosed booths, individual viewing areas, and other small rooms whose interiors cannot be seen from public areas of the establishment regularly have been found to be used as locations for engaging in unlawful sexual activity.

5.

As a result of the above, and the increase in incidences of HIV, AIDS, hepatitis B, and hepatitis C which are sexually transmitted or blood borne diseases, the City has a substantial interest in adopting regulations that will reduce the possibility for the occurrence of prostitution and unlawful sex acts at adult businesses in order to protect the health, safety, and well-being of its citizens. The City finds this is relevant to the need to regulate the secondary effects of adult businesses within the community.

6.

The public health, safety, welfare, and morals of all persons in the City shall be protected by the establishment of standards to diminish the possibility of infection of contagious diseases.

E.

Danger from the sexually transmitted disease AIDS.

1.

The Council is cognizant of the specific danger from the sexually transmitted disease AIDS, which is currently irreversible and fatal.

2.

The Council takes legislative notice that according to statistics provided by the Los Angeles County Health Department, in 1998 1,624 cases of AIDS were diagnosed in Los Angeles County and 184 AIDS-related deaths were reported.

3.

According to the most recent statistics available for 1999, 464 cases of AIDS were diagnosed in Los Angeles County between January 1, 1999 and June 30, 1999, and 42 AIDS-related deaths were reported for that same period. Further, the Council takes legislative notice of the County of Orange Communicable

Disease Summary 1998, County of Orange Health Care Agency, issued January 2000 ("Communicable Disease Summary").

4.

The Communicable Disease Summary states that 5,149 cases of AIDS were reported in Orange County between 1982 and 1998. In 1998, 305 cases of AIDS were reported in Orange County, an 8% increase over the 283 reported cases in 1997.

5.

As of December 1998, an estimated 2,345 residents of Orange County were living with AIDS, over double the number six years prior.

6.

As of December 2000, an estimated 5,700 Orange County residents were living with HIV or AIDS.

7.

The City also takes legislative notice of the AIDS Surveillance Report dated July 31, 2001 by the County of San Diego Health and Human Services Agency, Division of AIDS and Community Epidemiology ("AIDS Surveillance Report") and the report entitled San Diego County HIV/AIDS Status dated June 2000, also by the County of San Diego Health and Human Services Agency ("AIDS Status Report").

8.

According to the AIDS Surveillance Report, 10,876 AIDS cases were reported throughout the County since 1981 through July 2001, 150 of which were reported in 2001 and 420 of which were reported in 2000.

F.

Preventing the spread of other sexually transmitted diseases.

1.

The City is also concerned with preventing the spread of other sexually transmitted diseases (e.g., chlamydia, gonorrhea, hepatitis B, hepatitis C, and syphilis).

2.

The Communicable Disease Summary further indicates that between 1994 and 1998, 17,349 cases of chlamydia were reported, 3,094 cases of gonorrhea were reported, and 211 cases of syphilis were reported, in the County.

3.

The City also takes legislative notice of the STD Fact Sheet of 2000 by the County of San Diego Health and Human Services Agency ("STD Fact Sheet") and the Sexually Transmitted Diseases Annual Summary, San

Diego County, 1993 -1994, by the Sexually Transmitted Disease Control Program, dated December 1995 ("STD Annual Summary").

4.

According to the STD Fact Sheet and STD Annual Summary, 1109 cases of syphilis were reported throughout the County between 1990 and 2000, 27 of which were reported in 2000.

5.

With respect to gonorrhea, 27,890 cases of gonorrhea were reported between 1990 and 2000, 1797 of which were reported in 2000.

6.

The number of cases of chlamydia reported within the County dramatically exceeds the number of reported cases of syphilis and gonorrhea: 74,079 cases were reported between 1990 and 2000, 8637 of which were reported in 2000.

7.

It should also be noted that according to the AIDS Status Report, numerous studies have shown that sexually transmitted diseases (e.g., chlamydia, gonorrhea, and syphilis) facilitate the transmission of HIV.

8.

The Council has a reasonable basis to believe that the experiences of Los Angeles County, Orange County, and San Diego County as to these sexually transmitted or blood borne diseases are relevant to the experiences of Duarte.

G.

Deleterious secondary effects of live entertainment facilities.

1.

The Council has also determined that live entertainment facilities with or without the service of alcohol brings deleterious secondary effects into the community and it is necessary to protect the health, safety, and general welfare of the citizens of the City.

2.

In addition to the findings in studies conducted in other cities regarding increases in crime rates and blighting of areas in which these businesses are located, the Council also takes legislative notice of the facts recited in the case of Kev, Inc., v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); and Tily B. v. City of Newport Beach (1999) 69 Cal.App.4th 1, regarding how live adult entertainment facilities result in secondary effects (e.g., drug dealing, prostitution, and other law enforcement problems).

The City has a reasonable basis to conclude that these secondary effects are in play for live entertainment facilities which do not serve alcohol which are many times referred to as "nude juice bars" but in most cases provide totally nude dancers on a raised center stage and offer some type of off stage activity.

4.

It is important to note that the same dancers that perform on stage totally nude then add a minimal amount of clothing and move immediately off stage in most cases offering some type of off stage fare typically referred to as lap dances.

5.

The City has relied on information from police officers from its jurisdiction as well as information as to the experiences of sister communities to support its finding that live entertainment facilities have increased crime, including drug related activities, all of which place an added burden on the resources of the City's Police Department.

H.

Distance limitations between performers and patrons.

1.

The City also takes legislative note of the number of courts that have upheld distance limitations between performers and patrons, prohibitions against physical contact between performers and patrons, and precluded direct exchange of monies between performers and patrons at adult businesses that provide live entertainment, including, based on the presence of secondary effects including, but not limited to: Gammoh v. City of La Habra (9th Cir. 2005) 395 F.3d 1114; Tily B. v. City of Newport Beach (1999) 69 Cal.App.4th 1; Colacurcio v. City of Kent, 163 F.3d 545 (9th Cir. 1998); BSA, Inc. v. King County, 804 F.2d 1104, 1110-11 (9th Cir. 1986); Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir. 1986); DLS, Inc. v. City of Chattanooga, 894 F. Supp. 1140 (E.D. Tenn. 1995); Parker v. Whitfield County, 463 S.E.2d 116 (Ga. 1995); and Hang On, Inc. v. City of Arlington, 65 F.3d 1248 (5th Cir. 1995).

2.

The Council finds that a six-foot separation is appropriate for reasons which include, but are not limited to: the fact that six feet is approximately the distance of two outstretched arms; and it also assists in enforcing the prohibitions against physical contact and prevents the transmission of illegal drugs.

3.

The Council further finds that although off-stage performances have always been permitted within the City so long as the off-stage performances are performed no closer than within six feet of a patron.

I.

Children and minors exposed to the effects of adult businesses.

The Council recognizes the possible harmful effects on children and minors exposed to the effects of adult businesses and recognizes the need to enact regulations which will minimize and/or eliminate this exposure.

2.

The Council takes legislative notice of the Penal Code provisions authorizing local governments to regulate matter that is harmful to minors (i.e., Penal Code Section 313 et seq.).

3.

The Council further takes legislative notice of the cases that recognize that protection of minors from sexually explicit materials is a compelling government interest, including Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied 520 U.S. 1117 (1997) and Berry v. City of Santa Barbara, 40 Cal.App.4th 1075 (1995).

J.

Diminishes undesirable adverse secondary effects associated with the operation of adult businesses. While the Council desires to protect the rights conferred by the United States Constitution to adult businesses, it does so in a manner that ensures the continued and orderly use and development of property within the City and diminishes, to the greatest extent feasible, those undesirable adverse secondary effects which the above mentioned studies have shown to be associated with the operation of adult businesses.

K.

Locational limits for adult businesses.

1.

Locational limits on adult facilities are a legitimate and reasonable means of reducing adult businesses' secondary effects and helping to ensure that these businesses comply with reasonable regulations to minimize and control problems associated with these businesses and thereby protect the health, safety, and welfare of the City's residents, protect citizens from increased crime, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and businesses, and deter the spread of urban blight.

2.

No adult business use shall be established or located:

a.

Within 1,000 feet of an existing residential zone or use; or

b.

Within 1,000 feet of the nearest property line of a day care facility or center, park, place of religious assembly, playground, or school that is attended by minors.

3.

The distance shall be measured in a straight line, without regard to intervening structures, from the nearest exterior wall of the facility housing the adult business use or proposed adult business use to the property line included within a residential zone or property in current residential use or the nearest property line where the day care facility or center, park, place of religious assembly, playground, or school is located.

4.

The requirements contained in this Chapter do not unreasonably restrict the establishment or operation of constitutionally protected adult businesses in the City.

L.

Operational standards for adult businesses.

1.

The Council, in adopting operational standards, recognizes that these standards do not preclude reasonable alternative avenues of communication.

2.

For example, the closing hours requirement means that adult businesses are free to operate seven days a week for 16 hours each day.

3.

The Council takes note of the proliferation of adult material on the Internet, satellite television, direct television, CDs, DVDs, and that these various media provide alternative avenues of communication.

4.

The Council also considers and relies on published decisions examining the proliferation of communications on the Internet. (Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) [the principle channel through which many Americans now transmit and receive sexually explicit communication is the Internet]; Anheuser-Busch v. Schmoke, 101 F.3d 325, 329 (4th Cir. 1996), cert. denied 520 U.S. 1204 (1997) [the Fourth Circuit rejected a First Amendment challenge to a Baltimore ordinance restricting alcohol advertisements on billboards acknowledging that the Internet is one available channel of communication]; U.S. v. Hockings, 129 F.3d 1069 (9th Cir. 1997); see also U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 519 U.S. 820 [recognizing the Internet as a medium for transmission of sexually explicit material in the context of obscenity prosecutions].)

5.

The emergence of the Internet brings with it a virtually unlimited additional source of adult oriented sexual materials available to interested persons in every community with a mere keystroke.

An adult business no longer has to be physically located in a City to be available in the community.

M.

Ensuring that adult businesses are located in places and conducted so as to minimize adverse secondary effects. Zoning, licensing, or regulatory permits, along with operating standards are a legitimate and reasonable means of ensuring that adult businesses are located in places and conducted in a manner so as to minimize their adverse secondary effects and to help ensure that these businesses, licensees, operators, and permittees comply with reasonable regulations related to requirements designed to minimize and control problems associated with these businesses and thereby protect the health, safety, and welfare of the City's residents, protect citizens from increased crime, preserve the quality of life, preserve property values and the character of surrounding neighborhoods and businesses, and deter the spread of urban blight.

N.

Provisions do not unreasonably restrict the establishment or operation of constitutionally protected adult businesses.

1.

The requirements contained in this Chapter concerning distance between adult businesses and other provisions do not unreasonably restrict the establishment or operation of constitutionally protected adult businesses in the City, and a sufficient and reasonable number of alternative locations for adult businesses are provided by the City. The Council takes legislative notice of the United States Supreme Court decision in Renton that requires the City provide adult businesses a reasonable opportunity to open and operate.

2.

The Council also takes legislative notice of the Ninth Circuit's decision in Topanga Press, Lim v. City of Long Beach; Isbell v. City of San Diego; and World Wide Video v. City of Spokane with respect to availability of sites for adult businesses and finds that there are sufficient sites available for adult businesses within the City.

O.

Not intent of the council to condone or legitimize the distribution of obscene material. It is not the intent of the Council in enacting this Chapter, or any provision of this Chapter, to condone or legitimize the distribution of obscene material, and the City and its Council recognize that State law prohibits the distribution of obscene materials and expect and encourage law enforcement officials to enforce State obscenity statutes against these illegal activities in the City.

P.

Council does not intend to regulate in any area preempted by state law. The Council does not intend to regulate in any area preempted by State law, including but not limited to, regulation of obscene speech, nor is it the intent of the Council to preempt regulations of the State Department of Alcoholic Beverage Control ("ABC").

Q.

Chapter does not intend to authorize, legalize, or permit violations of city or state laws. Nothing in this Chapter is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, structure, or use which violates any City ordinance or any statute of the State regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.

A.

Purpose.

1.

The intent of this Chapter is to regulate uses which, because of their very nature, are believed to have any of the recognized significant secondary effects on the community which include, but are not limited to: depreciated property values and increased vacancies in residential and commercial areas in the vicinity of adult oriented businesses, interference with residential, commercial, and industrial property owners' enjoyment of their property when the property is located in the vicinity of adult oriented businesses due to increased crime, debris, noise, and vandalism; higher crime rates in the vicinity of adult oriented businesses; and blighting conditions (e.g., low-level maintenance of commercial premises and parking lots) which have a deleterious effect upon adjacent areas.

2.

Special regulation of these uses is necessary to ensure that these adverse effects will not contribute to the blighting or downgrading of the neighborhoods in the vicinity of the adult oriented businesses.

3.

In approving the regulations contained in this Chapter, the Council has reviewed detailed letters, reports, and studies prepared by other jurisdictions and its own staff with respect to the detrimental social, health, and economic effects on persons and properties surrounding adult oriented businesses.

4.

These studies include Upland, California (1992); Garden Grove, California (1991); Tucson, Arizona (1990); Seattle, Washington (1989); Austin, Texas (1986); Oklahoma City, Oklahoma (1986); Indianapolis, Indiana (1 984); Houston, Texas (I 983); Beaumont, Texas (1982); Minneapolis, Minnesota (1980); Phoenix, Arizona (1979); Whittier, California (1978); Amarillo, Texas (1977); Cleveland, Ohio (1977); Los Angeles, California (1977); State of Minnesota, Attorney General Report (1989); Newport news, Virginia (1996); St. Paul, Minnesota (1987); Corpus Christi, Texas (1995); National Law Center (1995); and Azusa (2003) (and are collectively referred to as "studies").

5.

The studies substantiate the adverse, secondary effects of adult businesses.

6.

It is neither the intent nor effect of this Chapter to impose limitations or restrictions on the content of any communicative material.

7.

It is neither the intent nor effect of this Chapter to restrict or deny access by adults to sexually oriented materials protected by the First Amendment, or to deny access by the distributors or exhibitors of sexually oriented materials to their intended market.

8.

Nothing in this Chapter is intended to authorize, legalize, or permit the establishment, operation or maintenance of any business, structure, or use which violates any City ordinance or any statute of the State regarding public nuisances, unlawful exposure, sexual conduct, lewdness or obscene or harmful matter, or the exhibition or public display thereof.

B.

Definitions. In addition to any other definitions contained in the Municipal Code, the following words and phrases shall, for the purpose of this Chapter and Article VI, Chapter 7, be defined as follows, unless it is clearly apparent from the context that another meaning is intended. Should any of the definitions be in conflict with any current provisions of the Municipal Code, these definitions shall prevail.

1.

Adult Arcade. A business establishment to which the public is permitted or invited and where as a regular and substantial course of conduct coin, card, or slug operated or electronically, electrically or mechanically controlled devices, still or motion picture machines, projectors, videos, DVDs, MPEG AVI or other computer video media, holograms, virtual reality devices, or other image-producing devices are maintained to show images on a regular or substantial basis, where the images so displayed are distinguished or characterized by an emphasis on matter depicting or describing "Specified Sexual Activities" or "Specified Anatomical Areas." These devices shall be referred to as "Adult Arcade Devices."

2.

Adult Booth/Individual Viewing Area. A partitioned or partially enclosed area or portion in an adult business used for any of the following purposes:

a.

Where a live or taped performance is presented or viewed, where the performances and/or images displayed or presented are distinguished or characterized by their emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas including, but not limited to booths or seating areas where lap dances or other Adult Live Entertainment is provided for the benefit of a single patron; or

b.

Where Adult Arcade Devices are located.

3.

Adult Business. An adult business shall mean:

a.

A business establishment or concern that as a regular and substantial course of conduct operates as an Adult Arcade, Adult Cabaret, Adult Modeling Studio, Adult Motion Picture Theater, and/or Adult Retail Store, (as these phrases are defined in this Section); or

b.

A business establishment or concern which as a regular and substantial course of conduct distributes, offers, or sells Adult Oriented Material or Sexually Oriented Merchandise, or which offers to its patrons materials, merchandise, products, services, or entertainment, including Adult Live Entertainment characterized by an emphasis on matters depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas but not including those uses or activities which are preempted by State law.

4.

Adult Cabaret. A business establishment (whether or not serving alcoholic beverages) that features Adult Live Entertainment as a regular and substantial course of conduct.

5.

Adult Live Entertainment. Any physical human body activity, whether performed or engaged in, alone or with other persons, including but not limited to acting, dancing, pantomiming, posing, simulating, singing, speaking, walking, or wrestling, in which (1) the performer (including but not limited to a topless and/or bottomless dancers, exotic dancers, go-go dancers, strippers, or similar performers) exposes to public view, without opaque covering, Specified Anatomical Areas; and/or (2) the performance or physical human body activity depicts, describes, or relates to Specified Sexual Activities whether or not the Specified Anatomical Areas are covered.

6.

Adult Modeling Studio. A business establishment which as a regular and substantial course of conduct provides for any form of consideration, the services of a live human model, who, for the purposes of sexual stimulation of patrons, displays Specified Anatomical Areas to be filmed, observed, painted, photographed, sculpted, sketched, or otherwise depicted by persons paying for the consideration. "Adult Modeling Studio" does not include schools maintained in compliance with standards set by the State Board of Education.

7.

Adult Motion Picture Theater. A business establishment, with or without a stage or proscenium, which as a regular and substantial course of conduct provides, for any form of consideration, material that is presented through digital video disks, films, holograms, laser disks, motion pictures, slides, video cassettes, virtual

reality devices, or similar electronically-generated reproductions that is characterized by the depiction or description of Specified Sexual Activities or Specified Anatomical Areas.

8.

Adult Oriented Material. Accessories, books, compact discs, drawings, digital video disks, holograms, laser disks, magazines, motion pictures, paintings, pamphlets, paraphernalia, photographs, prints, slides, tapes, videos, or electronically generated images or devices including computer software, or any combination thereof that is distinguished or characterized by its emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas. Adult Oriented Material shall include Sexually Oriented Merchandise.

9.

Adult Retail Store. A business establishment, which as a regular and substantial course of conduct displays, provides, sells, stocks, or otherwise conveys Adult Oriented Material and/or Sexually Oriented Merchandise.

10.

City Manager. The Duarte City Manager or the City Manager's designee.

11.

Day Care Facility or Day Care Center. Any child day care facility as defined in Health and Safety Code Section 1596.750 and Article 9 (Definitions), other than family day care homes.

12.

Establishment of an Adult Business. Establishment of an adult business shall include 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 adult business or to another form of an adult business;

c.

The addition of any adult business to any other existing adult business;

d.

The relocation of any adult business; or

e.

Physical changes that expand the square footage of an existing adult business by more than 10 percent.

13.

Owner/Permit Holder. An owner or permit holder shall include any of the following:

a.

The sole proprietor of an adult business;

b.

Any general partner of a partnership that owns and operates an adult business;

c.

A corporation;

d.

The owner of a controlling interest in a corporation or limited liability company that owns and operates an adult business; or

e.

The person designated by the officers of a corporation or the members of a limited liability company to be the permit holder for an adult business owned and operated by the corporation.

14.

Park. Any athletic field, golf course, park, playground, or swimming pool within the City which is under the City's control, operation and management or under the control of the County or a park district.

15.

Performer. Any person who is an employee or independent contractor of an adult business, and who, with or without any compensation or other form of consideration, performs Adult Live Entertainment for patrons of an adult business. Performer does not include a patron.

16.

Regular and Substantial Course of Conduct. When 25 percent of a business's stock in trade, and/or 25 percent of a business's total gross annual revenue, and/or 25 percent of a business's advertising, or interior net public area (not including non-public areas [e.g., dressing rooms, non-public storage space, office space, and public and non-public bathrooms]) is derived from or devoted to a particular thing.

17.

Religious Institution (also known as Place of Religious Assembly). Structure or facility that is used primarily for religious assembly and related religious activities (e.g., church, synagogue, or temple).

Residential Zone. Any property within the City which carries a zoning designation of R-1, R-1A, R-1B, R- 1D, R-1E, R-1F, R-2, R-3, R-4, or RMH, any mixed-use with residential uses, or a specific plan that permits residential uses.

19.

School.

a.

Any institution of learning for minors, whether public or private, offering instruction in those courses of study required by the California Education Code and/or is maintained in compliance with standards set by the State Board of Education and has an approved use permit, if required under the applicable jurisdiction.

b.

This definition includes an elementary school, kindergarten, middle or junior high school, nursery school, senior high school, or any special institution of education under the jurisdiction of the State Department of Education, but it does not include a vocational or professional institution of higher education, including a community or junior college, college, or university.

c.

This definition does not include private instructional and/or tutoring facilities.

20.

Sexually Oriented Merchandise. Sexually oriented implements, paraphernalia, or novelty items, such as, but not limited to: anatomical balloons with orifices, auto sucks, benwa balls, dildos, inflatable orifices, sexually oriented vibrators, simulated and battery operated vaginas, and similar sexually oriented devices which are designed or marketed primarily for the stimulation of human genital organs or sado-masochistic activity, sexually marketed lubricants, or merchandize distinguished or characterized by their emphasis on matter depicting, describing, or relating to Specified Sexual Activities or Specified Anatomical Areas.

21.

Specified Anatomical Areas. Specified anatomical areas shall mean and include any of the following:

a.

Less than completely and opaquely covered, and/or simulated to be reasonably anatomically correct, even if completely and opaquely covered human:

(1)

Anus and/or buttocks;

(2)

Female breasts below a point immediately above the top of the areola;

(3)

Genitals, and/or pubic region; or

b.

Human male genitals in a discernibly turgid state, even if completely or opaquely covered.

22.

Specified Sexual Activities. Specified sexual activities shall mean and include any of the following, irrespective of whether performed directly or indirectly through clothing or other covering:

a.

Human genitals in a state of sexual stimulation or arousal;

b.

Acts of human arousal, masturbation, or sexual stimulation;

c.

Simulated sexual intercourse;

d.

Use of human or animal coitus, ejaculation, masturbation, oral copulation, or sodomy;

e.

Masochism, erotic or sexually oriented torture, beating, or the infliction of pain, or bondage and/or restraints;

f.

Human excretion, menstruation, urination, vaginal or anal irrigation; and/or

g.

Fondling or other erotic touching of human buttock, genitals, pubic region, or female breast.

C.

Permit required. Notwithstanding any other provision of the Municipal Code, no adult business shall be permitted to operate, engage in, conduct, or carry on business within the City unless the owner of the business first obtains both an Adult Business Regulatory Permit and a Business License from the City.

D.

Permit requirements.

1.

It shall be unlawful for any person to carry on, conduct, engage in, establish, or operate any adult business within the City unless the person first obtains, and continues to maintain in full force and effect, an Adult Business Regulatory Permit as required by this Section.

a.

Any occurrence of the "Establishment of an Adult Business" as defined in Subsection B. (Definitions), above, shall require a new application for an Adult Business Regulatory Permit.

b.

The Adult Business Regulatory Permit shall be subject to the development and operational standards contained in Subsection F. (Development and Operating Standards), below.

2.

Permit applicants shall file a written, signed, and verified application on a form provided by the Director.

a.

Any changes in information on an application shall be submitted on a supplemental application within 10 working days of each change.

b.

The application shall contain the following information and shall also include the applicant's acknowledgment that the applicant has read, understands, and will comply with all of the requirements specified in Subsection F. (Development and Operating Standards), below:

(1)

If the permit applicant is an individual, the individual shall state his or her legal name, including any aliases, telephone number, home address (including previous addresses), tax identification number, social security number, information regarding past adult business ownership, and shall submit satisfactory written proof that he or she is at least 18 years of age.

(2)

If the permit applicant is a partnership, the partners shall state the partnership's complete name, address, and telephone number, and the names (including aliases), telephone number, home address (including previous addresses), tax identification number, social security number, and information on past adult business ownership of all partners. The applicant and all the partners shall also submit satisfactory written proof that he or she is at least 18 years of age and whether the partnership is general or limited; and shall attach a copy of the partnership agreement, if any.

(3)

If the permit applicant is a corporation, the corporation shall provide its complete name, the date of its incorporation, evidence that the corporation is in good standing under the laws of the State of California, the names and capacities of all officers and directors, the name of the registered corporate agent, and the address of the registered office for service of process.

(4)

If the permit applicant is an individual, he or she shall sign the application. If the permit applicant is other than an individual, each individual or entity with a 10 percent or greater interest in the business entity shall sign the application. Any individual who signs the application shall also provide his or her name, including any aliases, home address (including previous addresses), telephone number, date of birth, social security number, information regarding past adult business ownership, and shall submit satisfactory written proof that he or she is at least 18 years of age.

(5)

If the permit applicant intends to operate the adult business under a name other than that of the permit applicant, the permit applicant shall file the fictitious name of the adult business and show proof of registration of the fictitious name.

(6)

A description of the type of adult business for which the permit is requested and the proposed address where the adult business will operate, plus the names and addresses of the owners and lessors of the adult business site. If the premises are leased, a complete copy of the current lease shall be attached. The property owner shall sign the application.

(7)

The address to which notice of action on the application is to be mailed.

(8)

The full names, aliases, if any, addresses, telephone numbers and date of birth of all employees, independent contractors, and other persons who will perform Adult Live Entertainment at the adult business, who are required by Section 19.62.050 (Adult Live Entertainment Performers), below, to obtain an Ault Business Performer License.

(a)

This information shall be updated by the permit holder of the Adult Business Regulatory Permit within five days of retention of any new or additional employees, independent contractors, and other persons who will perform Adult Live Entertainment at the adult business, who are required by Section 19.62.050 (Adult Live Entertainment Performers), below, to obtain an Adult Business Performer License.

(b)

All persons who have been issued an Adult Business Regulatory Permit shall promptly supplement the information provided as part of the application for the permit with the names of all employees, independent

contractors, or other persons, who are required to obtain an Adult Business Performer License, within 10 working days of any change in the information originally submitted.

(c)

The information obtained by the City in compliance with this Subparagraph shall be kept confidential.

(9)

Permit applications shall include a signed and verified statement that:

(a)

The permit applicant, if an individual, or each director, officer, partner, and shareholder, or other party possessing a 10 percent or greater interest, if a partnership or corporation, has not pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex or sex-related offense; or

(b)

If there has been a conviction or a plea, then:

(i)

More than two years have elapsed between the date of conviction or plea, or the date of release from confinement for a conviction or plea, whichever is the later date, and the date of application if the conviction or plea is a misdemeanor;

(ii)

More than five years have elapsed between the date of conviction or plea, or the date of release from confinement for a conviction or plea, whichever is the later date, and the date of application if the conviction or plea is a felony; or

(iii)

More than five years have elapsed between the date of the last conviction or plea, or the date of release from confinement for the last conviction or plea, whichever is the later date, and the date of application if the convictions or pleas are two or more misdemeanors or a combination of misdemeanor offenses occurring within any 24-month period.

3.

The completed application shall be accompanied by a non-refundable application fee specified by Council resolution.

4.

The fact that a permit applicant possesses other types of State or City permits or licenses does not exempt the permit applicant from the requirement of obtaining an Adult Business Regulatory Permit.

E.

Investigation and action on application for adult business regulatory permit.

1.

The completeness of an application for an Adult Business Regulatory Permit shall be determined by the Director within five working days of its submittal.

a.

If the Director determines that the permit application is incomplete, the Director shall immediately notify in writing the permit applicant of the fact and the reasons therefore, including any additional information necessary to render the application complete.

b.

The writing shall be deposited in the U.S. mail, postage prepaid, immediately upon determination that the application is incomplete.

c.

Within five working days following the receipt of an amended application or supplemental information, the Director shall again determine whether the application is complete in compliance with the provisions specified above.

d.

Evaluation and notification shall occur as provided in this Subsection until the application is found to be complete.

2.

Upon receipt of a completed application and payment of the application and permit fees, the Director shall immediately write or stamp the application "received" and, in conjunction with City staff and the Chief of Police, shall promptly investigate the information contained in the application to determine whether an Adult Business Regulatory Permit shall be granted.

3.

Within 10 working days of receipt of the completed application, the Director shall issue or deny the license, unless extended for five additional working days upon a showing of good cause. Only one extension shall be permitted unless requested by the applicant.

4.

In reaching a decision, the Director shall not be bound by the formal rules of evidence in the California Evidence Code.

The failure of the Director to render any decision within the time frames established in any part of this Subsection shall be deemed to constitute an approval of the Adult Business Regulatory Permit. The Director's decision shall be hand delivered or mailed to the applicant at the address provided in the application, and shall be provided in compliance with the requirements of this Section.

6.

Notwithstanding any provisions in this Section regarding the occurrence of any action within a specified period of time, the applicant may request additional time beyond that provided for in this Section or may request a continuance regarding any decision or consideration by the City of the pending application. Extensions of time sought by applicants shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on applications.

7.

The Director shall grant or deny the application in compliance with the provisions of this Section, and so notify the applicant in the following manner:

a.

The Director shall write or stamp "Granted (vs. Approved)" or "Denied" on the application and date and sign the notation.

b.

If the application is granted, the Director shall stamp "Approved" on the application.

c.

If the application is denied, the Director shall attach to the application a statement of the reasons for the denial.

8.

The Director shall grant the application and issue the Adult Business Regulatory Permit unless the application is denied based upon one or more of the criteria specified in Subparagraph 10 below.

9.

If the Director grants the application, the applicant may begin operating the adult business for which the permit was sought, subject to strict compliance with the development and operational standards and requirements specified in Subsection F. (Development and Operating Standards), below. The permit holder shall post the permit conspicuously in the premises of the adult business.

10.

The Director shall deny the application for any of the following reasons:

a.

The adult business does not comply with the zoning and location standards specified in Section 19.62.020 (Applicability), above.

b.

The adult business does not comply with the development, operational, or performance standards specified in Subsection F. (Development and Operating Standards), below.

c.

The permit applicant, his or her agent, director, employee, manager, officer, partner, or shareholder with a 10 percent or greater interest has made any false, misleading, or fraudulent statement of material fact in the application for an Adult Business Regulatory Permit or in any document, record, or report required to be filed with the application, the Public Safety Department, Sheriff, other law enforcement agency, or other City department.

d.

The permit applicant is under 18 years of age.

e.

The required application fees have not been paid.

f.

The permit applicant, if an individual, or any director, officer, partner, shareholder, or other party possessing a 10 percent or greater interest, if a partnership or corporation, has:

(1)

Pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex or sex-related offense; and

(2)

Been subject to conviction or plea in one of the following:

(a)

Less than two years have elapsed between the date of conviction or plea, or the date of release from confinement for a conviction or plea, whichever is the later date, and the date of application if the conviction or plea is a misdemeanor;

(b)

Less than five years have elapsed between the date of conviction or plea, or the date of release from confinement for a conviction or plea, whichever is the later date, and the date of application if the conviction or plea is a felony; or

(c)

Less than five years have elapsed between the date of the last conviction or plea, or the date of release from confinement for the last conviction or plea, whichever is the later date, and the date of application if the convictions or pleas are two or more misdemeanors or a combination of misdemeanor offenses occurring within any 24-month period.

g.

Within the past 18 months the applicant, including, but not limited to, an owner, partner, or shareholder with a 10 percent or greater financial interest has been found to have violated any provision of this Chapter, has had an Adult Business Permit or similar entitlement permitting the establishment of an adult business revoked, regardless of whether the revocation occurred within the City or in some other jurisdiction.

11.

An applicant cannot re-apply for an Adult Business Regulatory Permit for a location for which the applicant previously submitted an application within 12 months following the date of prior denial, if the denial is based on Subparagraphs 10.c. or 10.f. Denial for any other reason shall be without prejudice to permit reapplication at any time.

12.

Any affected person may appeal the decision of the Director to the City Manager in writing in compliance with the provisions of Subsection H. (Denial, Revocation, or Suspension of Adult Business Regulatory Permits/Appeal Procedure), below.

F.

Development and operating standards.

1.

Hours of operation. It shall be unlawful for any employee, manager, operator, owner, or permittee of an adult business to allow the adult business to remain open for business, or to permit any employee or performer to engage in a performance, solicit a performance, make a sale, solicit a sale, provide a service, or solicit a service, between the hours of 2:00 a.m. and 10:00 a.m. of any day.

2.

Exterior lighting requirements. All exterior areas, including parking lots, of the adult business shall be illuminated at a minimum of 1.50 foot-candle, maintained and evenly distributed at ground level with appropriate devices to deflect, diffuse, or screen the lighting in a manner so as to prevent glare or reflected light from creating adverse impacts on adjoining and nearby public and private properties. Inoperable and/or broken lights shall be replaced within 24 hours.

3.

Interior lighting requirements. All interior areas of the adult business shall be illuminated at a minimum of 1.00 foot-candle, maintained and evenly distributed at floor level. Inoperable and/or broken lights shall be replaced within 24 hours.

Minors' access.

a.

To the extent that it is in compliance with the Penal Code, compact disks (CDs), digital video disks (DVDs), laser disks, movies, and videotapes rated "X" or "NC-17" by the Motion Picture Association of America ("MPAA") or which have not been submitted to the MPAA for a rating and which are distinguished or characterized by an emphasis on depicting or describing Specified Sexual Activities or Specified Anatomical Areas shall be restricted to persons at least 18 years of age.

b.

If an establishment that is not otherwise prohibited from providing access to persons under 18 years of age displays, rents, or sells DVDs, laser disks, movies, or videos that have been rated "X" or rated "NC-17" by the MPAA, or which have not been submitted to the MPAA for a rating, and which consist of images which are distinguished or characterized by an emphasis on depicting or describing Specified Sexual Activities or Specified Anatomical Areas, the CDs, DVDs, laser disks, movies, and videos shall be located in a specific section of the establishment where persons under the age of 18 shall be prohibited.

c.

It shall be unlawful for any employee, manager, operator, owner, permittee, or responsible managing employee of an adult business to allow any person under the age of 18 years upon the premises or within the confines of any adult business, either as a patron or employee, if no liquor is served, or under the age of 21 if liquor is served.

5.

Adult booth/individual viewing areas.

a.

No adult booth/individual viewing areas shall be occupied by more than one patron at a time.

b.

Each adult booth/individual viewing area within the adult business shall be simultaneously visible from a location in a continuous and accessible main aisle in a public portion of the establishment (the "Managers Station"), and shall not be obscured by any curtain, door, wall, two-way mirror, or other device which would prohibit a person from seeing the entire interior of the adult booth/individual viewing area from the main aisle.

(1)

A manager shall be stationed in the Manager's Station at all times.

(2)

No one shall maintain any adult booth/individual viewing area in any configuration unless the entire interior of each adult booth/individual viewing area is visible from the Manager's Station.

(3)

The entire body of any patron in any adult booth/individual viewing area shall be visible from the Manager's Station without the assistance of mirrors or other device.

c.

No doors are permitted on an adult booth/individual viewing area. No partially or fully enclosed adult booth/individual viewing areas or partially or fully concealed adult booth/individual viewing areas shall be permitted.

d.

No holes or other openings (commonly known as "glory holes") shall be permitted between adult booth/individual viewing areas. Any hole or opening shall be repaired within 24 hours using "pop" rivets to secure metal plates over the hole or opening to prevent patrons from removing the metal plates.

e.

No beds shall be permitted in an adult booth/individual viewing area.

6.

Interior of premises. No exterior door or window on the premises of an adult business shall be propped or kept open at anytime while the business is open and any exterior windows shall be covered with opaque coverings at all times.

7.

On-site manager and security measures required.

a.

All adult businesses shall have a responsible person who shall be at least 21 years of age and shall be on the premises to act as manager at all times during which the business is open.

b.

The individual designated as the on-site manager shall be registered with the Director to receive all complaints and be given by the owner and/or permittee the responsibility and duty to address and immediately resolve all violations taking place on the premises.

c.

All adult businesses shall provide a security system that visually records and monitors all parking lot areas during all business hours.

d.

At least one security guard shall be on duty outside the premises, patrolling the grounds and parking lot at all times.

e.

The security guard shall be charged with preventing violations of law and enforcing the provisions of this Chapter.

f.

All security guards shall be uniformed so as to be readily identifiable as a security guard by the public.

g.

No person acting as a security guard shall act as a door person, seller, or ticket taker, or any similar function, while acting as a security guard.

h.

For all adult businesses providing Adult Live Entertainment, an additional security guard shall be provided with each increase in maximum occupancy of 200 persons.

i.

Security guards shall be licensed under the California Private Security Services Act, Business & Professions Code Section 7580 et seq.

8.

Sign requirements. All adult businesses shall comply with the following sign requirements, in addition to those otherwise specified in the Municipal Code (Chapter 19.42 [Signs]). Should a conflict exist between the other requirements of the Municipal Code and this Subparagraph, the more restrictive shall prevail.

a.

If an adult business does not serve alcohol, it shall post a notice inside the establishment, within 10 feet of every entrance used by customers for access to the establishment, stating that persons below the age of 18 years of age are prohibited from entering onto the premises or within the confines of the adult business.

(1)

This notice shall be posted on a wall in a place of prominence.

(2)

The dimensions of the notice shall be no less than six inches by six inches, with a minimum typeface of 25 points on contrasting background.

b.

If the adult business serves alcohol, it shall comply with all notice and posting requirements of the Alcoholic Beverage Control Department.

c.

No material relative to adult businesses on the premises shall be displayed in window areas or any area where they can be viewed from the sidewalk in front of the structure.

9.

Adult live entertainment—Additional operating requirements.

a.

The following additional requirements shall pertain to adult businesses providing Adult Live Entertainment.

b.

No association, corporation, partnership, or person shall engage in, conduct, or carry on, or permit the operation of an adult business to engage in, conduct or carry on Adult Live Entertainment unless all of the following requirements are met:

(1)

No employee, manager, operator, owner, permittee, or responsible managing employee of the use shall allow any person below the age of 18 years upon the premises or within the confines of the adult business if no liquor is served, or under the age of 21 if liquor is served.

(2)

On-stage performances.

(a)

Except as provided below, no performer whose performance includes Adult Live Entertainment shall perform a performance at an adult business except upon a permanently fixed stage at least 18 inches above the level of the floor surrounded by a railing at least 30 inches high which railing is set back from the outside edges of the stage by six feet.

(b)

At all times during the performance all portions of the performer's body shall remain within the above referenced railing.

(3)

Off-stage performances.

(a)

A performer shall only be permitted to perform off-stage Adult Live Entertainment when the performer is at least six feet from a patron while the performer is engaged in a performance which includes Adult Live Entertainment.

(b)

This provision shall not apply to an Individual viewing area where the performer is completely separated from the patron by a floor to ceiling permanent solid barrier enclosed on all sides so that access by the patron is not possible.

(4)

No performer engaged in a performance which includes Adult Live Entertainment shall have physical contact with any patron, and no patron shall have physical contact with any performer, while the performer is performing on the premises.

(a)

In addition, while on the premises, no performer shall have physical contact with a patron and no patron shall have physical contact with a performer, which physical contact involves the touching of the clothed or unclothed genitals, pubic area, buttocks, cleft or the buttocks, perineum, anal region, or female breast with any part or area of the other person's body either before, during, or after any Adult Live Entertainment by the performer.

(b)

This prohibition does not extend to incidental touching.

(c)

Patrons shall be advised of the separation and no touching requirements by signs conspicuously placed on the railing separating and performers referenced in Subparagraph F.9.(3), above and in each Individual viewing area.

(d)

If necessary, patrons shall also be advised of the separation and no touching requirements by employees or independent contractors of the adult business.

(5)

No performer, when performing Adult Live Entertainment, shall accept directly from a patron, and no patron shall directly hand to a performer any tip or gratuity, or place tips in the performers' costumes.

(a)

Patrons shall be advised of these tipping and gratuity requirements by signs conspicuously placed on the premises.

(b)

If necessary, patrons shall also be advised of the tipping and gratuity requirements by employees or independent contractors of the adult business.

(6)

The adult business shall provide dressing rooms for performers that are separated by gender and exclusively dedicated to the performers' use, and which the performers shall use.

(a)

Same gender performers may share a dressing room.

(b)

Patrons shall not be permitted in dressing rooms.

(7)

The adult business shall provide an entrance/exit for performers which is separate from the entrance/exit used by patrons, which the performers shall be required to use when entering and exiting the business.

(8)

The adult business shall provide access for performers between the stage and the dressing rooms which is completely separated from the patrons.

(a)

If 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 fence, railing, or other barrier separating the patrons and the performers capable of (and which actually results in) preventing any physical contact between patrons and performers.

(b)

Nothing in this Subparagraph is intended to exempt the adult business from compliance with the provisions of California Code of Regulations Title 24 pertaining to handicapped accessibility.

10.

Adult motion picture theater. As referenced in Subparagraph F.9.b., above, all adult businesses shall observe the following special requirements. If the adult motion picture theater contains a hall or auditorium area, that area shall comply with each of the following provisions:

a.

Have individual, separate seats, not benches, couches, or the like, to accommodate the maximum number of persons who may occupy the area.

b.

Have a continuous main aisle alongside the seating areas in order that each person seated in the areas shall be visible from the aisle at all times.

c.

Have a sign posted in a conspicuous place at or near each entrance to the hail or auditorium area which lists the maximum number of persons who may occupy the hall or auditorium area, which number shall not exceed the number of seats within the hall or auditorium area.

d.

If an adult motion picture theater is designed to permit outdoor viewing by persons seated in automobiles, it shall have the motion picture screen so situated, or the perimeter of the establishment so fenced, that the material to be seen by those persons may not be seen from any day care facility, park, public right-of-way, religious institution, or school as those terms are defined in this Section.

11.

Regulation of public restroom facilities.

a.

If the adult business is required to provide restrooms for patron use, it shall provide separate restroom facilities for female and male patrons.

b.

The restrooms shall be free from adult oriented material.

c.

Only one person shall be allowed in each restroom at any time, unless otherwise required by law, in which case the adult business shall employ a restroom attendant of the same sex as the restroom users who shall be present in the public portion of the restroom during operating hours.

d.

The attendant shall ensure that no person of the opposite sex is permitted into the restroom, and that not more than one person is permitted to enter a restroom stall, unless otherwise required by law, and that the restroom facilities are used only for their intended sanitary purposes.

e.

Access to restrooms for patron use shall not require passage through an area used as a dressing area by the performers.

12.

Trash. All interior trash cans shall be emptied into a single locked trash bin lined with a plastic bag at least once each day.

G.

Transfer of adult businesses or adult business regulatory permits.

1.

A permit holder shall not operate an adult business under the authority of an Adult Business Regulatory Permit at any place other than the address of the adult business stated in the application for the permit.

2.

Adult Business Permits are non-transferable.

a.

No adult business or Adult Business Regulatory Permit shall be assigned, sold, or transferred by the permittee, or by operation of law, to any other person(s); any assignment, sale, or transfer, or attempted assignment, sale, or transfer, shall be deemed to constitute a voluntary surrender of the permit and the permit shall thereafter be deemed terminated and void; provided, and excepting, however, that if the permittee is a partnership and one or more of the partners should die, one or more of the surviving partners may acquire, by purchase or otherwise, the interest of the deceased partner(s) without affecting a surrender or termination of the permit and in each case the permittee shall thereafter be deemed to be the surviving partner(s).

b.

If the permit is issued to a corporation, stock may be assigned, issued, sold, or transferred to stockholders who have been named on the application.

c.

If any stock is assigned, issued, sold, or transferred to a person not listed on the application as a stockholder, the permit shall be deemed terminated and void.

H.

Denial, revocation, or suspension of adult business regulatory permits/appeal procedure.

1.

Written notice of the proposed denial, revocation, or suspension.

a.

On determining that the grounds for Adult Business Regulatory Permit denial, revocation, or suspension exist, the Director shall furnish written notice of the proposed denial, revocation, or suspension to the permit applicant or permit holder.

b.

The notice shall specify the time and place of a hearing before the City Manager and the ground(s) upon which the hearing is based, the pertinent Municipal Code Section(s), and a brief statement of the factual matters in support thereof.

c.

The notice shall be mailed, postage prepaid, addressed to the address of the permit applicant or permit holder provided to the City, or shall be delivered to the permit applicant or permit holder personally or at the business, at least 10 working days before the hearing date.

d.

The hearing shall be consistent with the following requirements:

(1)

All parties involved shall have the right to offer documentary, tangible, and testimonial evidence bearing upon the issues and may be represented by counsel.

(2)

The City Manager shall not be bound by the formal rules of evidence.

(3)

Any hearing under this Subsection may be continued for a reasonable time for the convenience of a party or witness at the request of the permit applicant or permit holder. Extensions of time or continuances sought by a permit applicant or permit holder shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on permit denials, revocations, or suspensions.

(4)

The City Manager may conduct the hearing itself or may delegate the hearing to a retired judge (the "Designated Hearing Officer") who shall hear the case including all factual and legal challenges, and make a proposed decision to the City Manager within five working days of the conclusion of the hearing.

(a)

Upon receipt of the Designated Hearing Officer's proposed decision, the City Manager shall render its decision within seven days.

(b)

If the City Manager finds and determines that there are grounds for denial, revocation, or suspension, the City manager shall impose one of the following:

(i)

Denial of the permit or conditional granting of the permit;

(ii)

Revocation of the permit; or

(iii)

Suspension of the permit for a specified period not to exceed 180 days.

(5)

The City Manager shall render a written decision that shall be hand delivered or overnight mailed to the permit holder within five working days.

2.

Grounds for revocation. An Adult Business Regulatory Permit may be revoked or suspended based on the following causes arising from the acts or omissions of the permit holder, or an agent, director, employee, manager, partner, or stockholder with a 10 percent or greater interest of the permittee (unless a performer is an employee, any performer shall be deemed to be an agent of the permittee for purposes of this Section):

a.

The use or equipment, location, or structure used by the adult business fails to comply with applicable building, fire, electrical, plumbing, health, and those zoning requirements of the Municipal Code or this Chapter relating to adult businesses, including the adult business development and operating standards specified in Subsection F. (Development and Operating Standards), above.

b.

The permit holder has failed to obtain or maintain all required City, County, and State licenses and permits.

c.

The permit holder has made any false, fraudulent, or misleading statement of material fact in the application for an Adult Business Regulatory Permit.

d.

The permit is being used to conduct an activity different from that for which it was issued.

e.

The permit holder has failed to submit and/or update the information pertaining to performers in compliance with Subparagraph D. 2. (8), above.

f.

An adult business has been operated without a person on the premises who is over 18 and is the person duly designated as a manager by the permittee at all times during which the business is open or operating.

g.

A permittee, including, but not limited to, an employee, owner, partner, or shareholder with a 10 percent or greater financial interest of an adult business, has pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense and:

(1)

Less than two years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor;

(2)

Less than five years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a felony; or

(3)

Less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period.

h.

An independent contractor working in the adult business or individual employed by the adult business has been convicted of two or more sex-related offenses that occurred in or on the licensed premises within a 12-month period and was an employee or independent contractor of the adult business at the time the offenses were committed.

i.

The use for which the Adult Business Regulatory Permit was granted has ceased to exist or has been suspended for more than 180 days.

j.

The permit holder, agent, director, employee, manager, partner, or stockholder with at least a 10 percent interest in the business has knowingly allowed or permitted, and has failed to make a reasonable effort to prevent the occurrence of any of the following on the premises of the adult business; or a permittee has been convicted of violating any of the following State laws on the premises of the adult business:

(1)

Any act of unlawful sexual intercourse, sodomy, oral copulation, or masturbation.

(2)

Use of the establishment as a place where unlawful solicitations for sexual intercourse, sodomy, oral copulation, or masturbation openly occur.

(3)

The occurrence of acts of assignation, lewdness, or prostitution, including any conduct constituting violations of California Penal Code Sections 315, 316, or 318.

(4)

Any act constituting a felony involving the sale, use, possession, or possession for sale of any controlled substance specified in California Health and Safety Code Sections 11054, 11055, 11056, 11057, or 11058.

(5)

Any conduct constituting a criminal offense which requires registration under California Penal Code Section 290.

(6)

An act or omission in violation of any of the requirements of this Chapter if the act or omission is with the approval, authorization, or knowledge of the permittee or is as a result of the permittee's negligent supervision of the employees of the adult business. This includes the allowance of activities that are or become a public nuisance, which includes the disruptive conduct of business patrons whether on or immediately off the premises where the patrons disturb the peace, obstruct traffic, damage property, engage in criminal conduct, violate the law and otherwise impair the free enjoyment of life and property.

3.

No new permit within 18 months. In the event a permit is revoked (or suspended) in compliance with this Section, another Adult Business Regulatory Permit to operate an adult business shall not be granted to the permittee, or any other board member, director, manager, owner, or immediate family member of any of the above within 18 months following the date of the revocation (or if suspended, during the period of suspension).

4.

Decision of city manger final. Notwithstanding any other provision of this Section, the decision of the City Manager on any revocation or suspension shall be deemed final.

I.

Judicial review.

1.

The time for a court challenge to a decision of the Board (vs. City Manager) rendered under Subsection H. (Denial, Revocation, or Suspension of Adult Business Regulatory Permits/Appeal), above, is governed by California Code of Civil Procedure Section 1094.8.

2.

Notice of the Board's (vs. City Manager's) decision and its findings under Section 6807 shall include citation to California Code of Civil Procedure Section 1094.8.

3.

Any permit applicant or permit holder whose permit has been denied, revoked, or suspended in compliance with Sections 6804 and/or 6807 shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure Section 1094.8.

4.

A revocation or suspension of an Ault Business License shall be effective upon the latter to occur of the following:

a.

The expiration of the time period within which the permittee can commence judicial review of the revocation in compliance with Code of Civil Procedure Section 1094.8, if no action for review is filed; or

b.

If judicial review is commenced, upon issuance of judgment in the trial court.

J.

Display of adult business regulatory permit. Every adult business shall display, at all times during business hours, the Adult Business Regulatory Permit issued in compliance with the provisions of this Section for the adult business in a conspicuous place so that the same may be readily seen by all persons entering the adult business.

K.

Employment of and services rendered to persons under the age of 18 years prohibited, 21 if alcoholic beverages are served.

1.

Employees.

a.

Employees of an adult business shall be at least 18 years of age.

b.

It shall be unlawful for any director, employee, manager, officer, operator, owner, partner, or other person in charge of any adult business to employ, contract with, or otherwise retain any services in connection with the adult business with or from any person who is not at least 18 years of age.

c.

If alcoholic beverages are served at the adult business, all employees of the adult business shall be at least 21 years of age.

d.

If alcoholic beverages are served at the adult business, it shall be unlawful for any director, employee, manager, officer, operator, owner, partner, or other person in charge of any adult business to employ, contract with, or otherwise retain any services in connection with the adult business with or from any person who is not 21 years of age; and the persons shall exercise reasonable care in ascertaining the true age of persons seeking to contract with, be employed by, or otherwise service the adult business.

e.

The provisions of this Subsection do not apply to service employees (e.g., janitors, repair and maintenance workers, or similar service workers) whose work is not conducted during the hours of operation for the adult business as specified in Subsection F. (Development and Operating Standards), above.

2.

Patrons.

a.

Patrons of an adult business shall be at least 18 years of age.

b.

It shall be unlawful for any director, employee, manager, officer, operator, owner, partner, permittee, or other person in charge of any adult business to permit to enter or remain within the adult business any person who is not at least 18 years of age.

c.

If alcoholic beverages are served at the adult business, patrons shall be at least 21 years of age.

d.

If alcoholic beverages are served at the adult business, it shall be unlawful for any director, employee, manager, officer, operator, owner, partner, permittee, or other person in charge of any adult business to permit to enter or remain within the adult business any person who is not at least 21 years of age; and the persons shall exercise reasonable care in ascertaining the true age of persons entering the adult business.

3.

X-rated movies.

a.

The displaying, renting, and/or selling of compact disks (CDs), digital video disks (DVDs), laser disks, movies, and videotapes rated "X" or "NC-17" by the Motion Picture Association of America ("MPAA") shall be restricted to persons at least 18 years of age or older.

b.

If an establishment that is not otherwise prohibited from providing access to persons under 18 years of age displays, rents, or sells CDs, DVDs, laser disks, movies, or videos that have been rated "X" or rated "NC17" by the MPAA, or which have not been submitted to the MPAA for a rating, and which consist of images that are distinguished or characterized by an emphasis on depicting or describing Specified Sexual Activities or Specified Anatomical Areas, the CDs, DVDs, laser disks, movies, or videos shall be located in a specific section of the establishment from which persons under the age of 18 shall be prohibited.

L.

Inspections.

1.

Each permit agent, applicant, director, employee, manager, officer, operator, owner, partner, permittee, shareholder with a 10 percent or greater interest, or other person in charge of an adult business shall permit representatives of the Development Services Department, Fire Department, Health Department, Public Safety Department, other City departments, to inspect the adult business for the purpose of ensuring compliance with this Chapter, other applicable law(s), and the development and operating standards specified in Subsection F. (Development and Operating Standards), above. applicable to adult businesses at any time it is occupied or opened for business.

2.

The inspections shall be conducted in a reasonable manner.

M.

Employment of performers without valid license unlawful. It shall be unlawful for any agent, director, employee, manager, officer, operator, owner, partner, permittee, shareholder with a 10 percent or greater interest, or other person in charge of an adult business which provides Adult Live Entertainment to allow any person to perform entertainment who is not in possession of a valid, un-revoked, un-suspended Adult Business Performer License.

N.

Regulations non-exclusive.

1.

The provisions of this Chapter regulating adult businesses are not intended to be exclusive, and compliance with these provisions shall not excuse noncompliance with any other regulations pertaining to the operation of businesses as adopted by the Council.

2.

In the event of direct conflict, the provision of this Chapter shall control.

O.

Violations.

1.

Any agent, director, employee, manager, operator, owner, partner, permittee, or independent contractor of an adult business violating or assisting, counseling, or permitting the violation of any of these provisions regulating adult businesses shall be subject to any and all civil remedies, including without limitation permit revocation.

a.

All remedies shall be cumulative and not exclusive.

b.

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

2.

The restrictions imposed in compliance with this Chapter are part of a regulatory licensing process, and do not constitute a criminal offense.

3.

Notwithstanding any other provision of the Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this Chapter related to sexual conduct or activities.

P.

Public nuisance. In addition to the penalties specified in Subsection O. (Violations), above, any adult business which is operating in violation of these provisions regulating adult businesses is declared to constitute a public nuisance and, may be abated or enjoined from further operation.

A.

Purpose and intent.

1.

It is the purpose and intent of this Section to provide for the licensing of Adult Live Entertainment Performers in order to promote the health, safety, and general welfare of the citizens of the City.

2.

The goals of these performer licensing provisions are:

a.

To protect minors by requiring that all performers be over the age of 18;

b.

To ensure the correct identification of persons performing in adult businesses;

c.

To enable the City to deploy law enforcement resources effectively; and

d.

To detect and discourage the involvement of crime in adult businesses by precluding the licensing of performers with certain sex-related convictions in a set time period.

3.

It is neither the intent nor the effect of these regulations to invade the privacy of performers or to impose limitations or restrictions on the content of any communicative material.

4.

It is neither the intent nor the effect of these regulations to restrict or deny access by adults to communicative materials or to deny access by the distributors or exhibitors of adult businesses to their intended lawful market.

5.

Nothing in these regulations is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, structure, or use which violates any City ordinance or any statute of the State of California regarding public nuisances, unlawful or indecent exposure, sexual conduct, lewdness, obscene or harmful matter, or the exhibition or public display thereof.

6.

The definitions contained in the Municipal Code, specifically those found in Section 19.62.040 (Adult Oriented Businesses), above, shall govern for purposes of these regulations.

B.

Adult business performer license.

1.

No performer shall be contracted, employed, hired for, or permitted to perform any Adult Live Entertainment in an adult business without first having a valid Adult Business Performer License issued by the City.

2.

Consistent with the purposes of enforcing this Section of the Municipal Code (Adult Live Entertainment Performers) the Director shall mean the Community Development Director of the City or his or her designee and the License Officer shall mean the Finance Director of the City or his or her designee.

3.

License applicants shall file a written, signed, and verified application or renewal application on a form provided by the License Officer. The application shall contain the following information, necessary for the City to determine an applicant's ability to function responsibly in an adult business setting, and be accompanied by the following documents:

a.

The license 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.

Height, weight, hair and eye color, and tattoo descriptions and locations.

d.

Each present and/or, as the case may be, proposed business address(es) and telephone number(s) of the establishments at which the applicant intends to work.

e.

Driver's license or identification number and state of issuance.

f.

Social Security number.

g.

Satisfactory written proof of verifiable identification establishing that the permit applicant is at least 18 years of age or 21 years of age if the performance is to occur in a Department of Alcoholic Beverage Control (ABC) regulated establishment.

h.

The license applicant's fingerprints on a form provided by the License Officer and a color two by two inch photograph clearly showing the applicant's face.

(1)

Any fees for the photographs and fingerprints shall be paid by the applicant.

(2)

Fingerprints and photograph shall be taken within 180 days of the date of application.

i.

Whether the license applicant has pled guilty or nolo contendere or been convicted of an offense classified by this or any other state as a sex-related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor; or (b) less than five years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of conviction, whichever is the later date, if the conviction is a felony; or (c) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period. This Section shall be applied consistent with California Penal Code Section 11105 and any amendments thereto.

j.

If the application is made for the purpose of renewing a license, the license applicant shall attach a copy of the license to be renewed.

k.

Address of primary place of residence.

4.

The completed application shall be accompanied by a non-refundable application fee and an annual license fee as set by Council resolution.

5.

The completeness of an application shall be immediately determined by the License Officer upon its submittal.

a.

The License Officer will accept applications during normal City Hall working hours.

b.

If the License Officer determines that the application is incomplete, the License Officer shall immediately inform the applicant of the fact and the reasons therefore, including any additional information necessary to render the application complete.

c.

Upon receipt of a completed Adult Business Performer application and payment of the license fee specified in Subparagraph B. 4., above, the License Officer shall immediately issue a temporary license which shall expire of its own accord 10 business days following the date of issuance and shall only be extended as provided in Subparagraph C. 3., below.

d.

This temporary Adult Business Performer license shall authorize a performer to commence performance at an adult business that possesses a valid Adult Business Regulatory Permit which authorizes it to provide Adult Live Entertainment.

6.

The fact that a license applicant possesses other types of State or City permits or licenses, including Adult Business Performer Licenses or permits from other cities, does not exempt the license applicant from the requirement of obtaining an Adult Business Performer License from the City.

7.

The information provided above in Subparagraphs 3. a., e., f., and k. shall be redacted from any public disclosure under the California Public Records Act to protect the physical security of the performers.

C.

Investigation and action on application for adult business performer licenses.

1.

Upon submission of a completed application, payment of license fees, and issuance of a temporary Adult Business Performer License in compliance with Subsection B. (Adult Business Performer License), above, the License Officer shall immediately stamp the application "Received" and shall investigate the application to determine whether the license applicant should be issued an Adult Business Performer License.

2.

Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The License Officer's decision to grant or deny the Adult Business Performer License shall be made within 10 working days following the date the temporary license was issued and in no case shall the decision to grant or deny the license application be made after the expiration of the temporary license.

3.

The License Officer shall render a written decision to grant or deny the license within the foregoing 10-day period.

a.

The decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing 10-day period, at the address provided by the applicant in the application.

b.

For good cause as specified in writing, the 10-day period shall be extended up to an additional 10 days.

c.

This extension shall automatically extend the temporary license.

d.

Failure of the License Officer to render a decision on the Adult Business Performer License within the time frames established by this Section shall be deemed to constitute an approval.

4.

The License Officer shall notify the applicant in the following manner:

a.

The License Officer shall write or stamp "Approved" or "Denied" on the application and date and sign the notation.

b.

If the application is approved, the License Officer shall attach to the application an Adult Business Performer License.

c.

If the application is denied, the License Officer shall attach to the application a statement of the reasons for denial. The notice shall also provide that the permit applicant may appeal the denial to the City Manager in compliance with Subsection D. (Denial, Revocation, or Suspension of Adult Business Performer License/Appeal Hearing), below.

d.

The application, as acted upon, and the license, if any, shall be placed in the United States mail, first class postage prepaid, or hand delivered, addressed to the license applicant at the residence address stated in the application in compliance with the time frames established in this Section.

5.

The License Officer shall approve the application and issue the license unless the application is denied based on one of the grounds specified in Subparagraph D.3., below.

6.

On determining that the grounds for license denial exist in compliance with Subparagraph D. 3., below, the License Officer shall furnish written notice of the denial to the applicant. The notice shall provide, in addition to the grounds for denial, that the license applicant may appeal the denial to the City Manager in compliance with Subsection D. (Denial, Revocation, or Suspension of Adult Business Performer License/Appeal Hearing), below, and that the temporary license shall be extended through the time the appeal is concluded.

7.

Each Adult Business Performer License, other than the temporary license described in Subsection B. (Adult Business Performer License), above, shall expire in 12 months following the date of issuance and may be

renewed only by filing with the License Officer a written request for renewal, accompanied by the annual license fee and a copy of the license to be renewed.

a.

The request for renewal shall be made at least 30 days before the expiration date of the license.

b.

If the application conforms to the previously approved application and there has been no change with respect to the license holder being convicted of any crime classified by this or any other state as a sexrelated offense, the License Officer shall renew the license for 12 months.

c.

Any plea to or conviction of a sex-related offense requires the renewal application to be set for hearing before the Board (vs. City Manager) in compliance with the provisions of this Section.

d.

The denial of a renewal application is appealable in compliance with the provisions of Subsection D. (Denial, Revocation, or Suspension of Adult Business Performer License/Appeal Hearing), below.

e.

Applications for renewal shall be acted upon as provided in this Section for action upon applications for a new license.

D.

Denial, revocation, or suspension of adult business performer license/appeal hearing.

1.

On determining that grounds for license denial, revocation, or suspension (also referred to collectively as License Action) exist, the License Officer shall furnish written notice of the License Action to the license holder or applicant (referred to in this Section as "License Holder" or "Licensee" and shall also mean "License Applicant" or "Applicant").

a.

The notice shall specify the time and place of a hearing and the ground(s) upon which the hearing is based, the pertinent Municipal Code Sections, and a brief statement of the factual matters in support thereof.

b.

The notice shall be mailed, postage prepaid, addressed to the last known address of the License Holder, or shall be delivered to the License Holder personally, at least 10 working days prior to the hearing date before the City Manager.

The Applicant or License Holder shall have the right to offer documentary, tangible, and testimonial evidence bearing upon the issues and may be represented by counsel.

a.

The City Manager shall not be bound by the formal rules of evidence.

b.

Any hearing under this Section may be continued for a reasonable time for the convenience of a party or a witness at the request of the Licensee.

c.

Extensions of time or continuances sought by a Licensee shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on License Actions.

3.

An Adult Business Performer License may be denied, revoked, or suspended, based on any of the following causes arising from the acts or omissions of the License Holder:

a.

The Applicant or Licensee has made any false, fraudulent, or misleading statement of material fact in the application for an Adult Performer License.

b.

The Applicant or Licensee is under 18 years of age.

c.

The Applicant or Licensee has pled guilty, nolo contendere, or been convicted of an offense classified by this or any other state as a sex-related offense and (a) less than two years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the conviction is a misdemeanor, or (b) less than five years have elapsed since the date of conviction or the date of release from confinement of conviction to the date of application, whichever is the later date, if the conviction is a felony; or (c) less than five years have elapsed since the date of the last conviction or the date of release from confinement for the conviction to the date of application, whichever is the later date, if the convictions are two or more misdemeanors or combination of misdemeanor offenses occurring within any 24-month period.

d.

The Applicant or Licensee has committed acts in violation of the requirements and standards of the Adult Business Ordinance (Section 19.62.040 [Adult Oriented Businesses), above]).

After holding the hearing in compliance with the provisions of this Section, if the City Manager finds and determines that there are grounds for denial, revocation, or suspension, the City Manager shall impose one of the following:

a.

Denial and/or revocation of the license;

b.

Suspension of the license for a specified period, not to exceed 180 days; or

c.

Conditional granting of the license.

5.

The City Manager shall render a written decision that shall be hand delivered or overnight mailed to the License Holder within two working days of the hearing.

6.

The City Manager's failure to render a decision within the time frames established by this Section shall constitute an approval or reinstatement of the license.

7.

In the event an Adult Business Performer License is revoked in compliance with this Section, another Adult Business Performer License shall not be granted to the Licensee within 12 months following the date of the revocation.

E.

Judicial review.

1.

The time for a court challenge to a decision of the City Manager rendered in compliance with this Section is governed by California Code of Civil Procedure Section 1094.8.

2.

Notice of the City Manager's decision and findings rendered in compliance with this Section shall include citation to California Code of Civil Procedure Section 1094.8.

3.

Any Applicant or License Holder whose license has been denied, revoked, or suspended in compliance with this Section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure Section 1094.8.

F.

Display of license identification cards.

1.

The License Officer shall provide each Adult Business Performer required to have a license in compliance with this Section with an identification card containing the name, address, photograph, and permit number of the performer.

2.

Every performer shall have this identification card available for inspection at all times during which he or she is on the premises of the adult business at which he or she performs or entertains.

G.

Adult business performer license non-transferable.

1.

No Adult Business Performer License may be assigned, sold, or transferred by any Licensee or by operation of law, to any other corporation, group, partnership, person, or any other entity.

2.

Any assignment, sale, or transfer, or attempted assignment, sale, or transfer shall be deemed to constitute a voluntary surrender of the Adult Business Performer License, and the license thereafter shall be null and void.

H.

Time limit for filing application for permit.

1.

All persons required by this Section to obtain an Adult Business Performer License who are performing in the City prior to the effective day of this Section shall apply for and obtain an Adult Business Performer License within 60 days of the effective date of this Section.

2.

Failure to do so and continued performance of any Live Adult Entertainment after this 60-day period of time without a permit or license shall constitute a violation of the Municipal Code.

I.

Violations.

Any person violating or causing the violation of any of these provisions regulating Adult Business Performer Licenses shall be subject to license revocation in compliance with Subsection D. (Denial, Revocation, or Suspension of Adult Business Performer License/Appeal Hearing), above, and any and all other civil remedies.

a.

It shall be a violation of this Section and Section 19.62.040 (Adult Oriented Businesses), above, for any principal, including but not limited to any Adult Business Permittee, to assist, counsel, permit, or procure any agent of that permittee, including but not limited to an employee or independent contractor, to violate any provision of this Section.

b.

All remedies provided in this Section shall be cumulative and not exclusive.

c.

Any violation of these provisions shall constitute a separate violation for each and every day during which a violation(s) is committed or continued.

2.

The operating standards for performers of Adult Live Entertainment are part of a regulatory licensing process, and the City does not impose a criminal penalty for violations of the provisions of this Section relating to sexual conduct or activities.

3.

In addition to the remedies specified in Subparagraph 1., above, any violation of any of these provisions regulating Adult Business Performer Licenses is hereby declared to constitute a public nuisance and may be abated or enjoined.

J.

Regulations nonexclusive. The provisions of this Section regulating Adult Business Performer Licenses are not intended to be exclusive, and compliance with these provisions shall not excuse noncompliance with any other regulations pertaining to the licensing provisions as adopted by the Council.

Chapter 19.64 - DENSITY BONUS FOR AFFORDABLE HOUSING[[1]]

Sections:

Footnotes:

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Editor's note— Ord. No. 916, § 6, adopted April 25, 2023, amended Ch. 19.64 in its entirety to read as herein set out. Former Ch. 19.64, §§ 19.64.010—19.64.040, pertained to similar subject matter.