Modesto Municipal Code Art. 3 Adult-Oriented Business Performer Permit

It is the purpose and intent of this chapter to provide for the licensing of adult-oriented business performers in order to promote the health, safety, and general welfare of the City. The goals of the performer licensing provisions are (1) to protect minors by requiring that all performers be over the age of eighteen (18) years; (2) to assure the correct identification of persons performing in adult-oriented businesses; (3) to enable the City to deploy law enforcement resources effectively; and (4) to detect and discourage the involvement of crime in adult-oriented businesses by precluding the licensing of performers with certain sex related convictions within a prior time period. 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. Similarly, it is neither the intent nor the effect of these regulations to restrict or deny access by adult-oriented businesses to communicative materials or to deny access by the distributors or exhibitors of adult-oriented businesses to their intended lawful market. Nothing in these regulations is intended to authorize, legalize, or permit the establishment, operation, or maintenance of any business, building, 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.

The definitions contained in Chapter 5-9.102 of the Modesto Municipal Code, shall govern for purposes of these regulations.

(Ord. 3778-C.S, § 4, effective 6-6-24)

(a) No performer shall be employed, hired, engaged, or otherwise retained in an adult-oriented business to participate in or give any live performance displaying "specified anatomical areas" or "specified sexual activities" without first having a valid adult-oriented business performer permit issued by the City.

(b) The Police Chief or his/her designee shall issue, deny, and renew adult-oriented business performer permits in accordance with these regulations.

(c) Permit applicants shall file a written, signed, and verified application or renewal application on a form provided by the Police Chief. Such application shall contain the following information:

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

(2) Principal place of residence.

(3) Age, date, and place of birth.

(4) Height, weight, hair and eye color, and tattoo descriptions and locations.

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

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

(7) Social security number.

(8) Satisfactory written proof that the permit applicant is a least eighteen (18) years of age.

(9) The permit applicant's fingerprints on a Livescan form provided by the Modesto Police Department and two (2) color two-by-two inch photographs clearly showing the applicant's face. Any fees for the photographs and fingerprints shall be paid by the applicant. Fingerprints and photographs shall be taken within six (6) months of the date of application.

(10) Whether the permit 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 (2) 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 (5) years have elapsed since the date of conviction or the date of release from confinement for the conviction to the date of conviction, whichever is the later date, if the conviction is a felony; or (c) less than five (5) 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 (2) or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four-month period.

(11) If the application is made for the purpose of renewing a permit, the permit applicant shall attach a copy of the permit to be renewed.

(d) The information provided above in subsection (c) of this section, which is personal, private, confidential, or the disclosure of which could expose the applicant to the risk of harm, will not be disclosed under the California Public Records Act or the open government ordinance. Such information includes, but is not limited to, the applicant's residence address, telephone number, date of birth, age, driver's permit, and social security number. The City Council in adopting the application and licensing and/or permit system set forth herein has determined in accordance with Government Code § 6255 that the public interest in disclosure of the information set forth above is outweighed by the public interest in achieving compliance with this chapter by ensuring that the applicant's privacy, confidentiality or security interests are protected. The City Clerk shall cause the same to be redacted from any copy of a completed application form made available to any member of the public, the above-mentioned information.

(e) The completed application shall be accompanied by a non-refundable application fee and an annual permit fee. The amount of such fees shall be as set forth in the schedule of fees established by resolution from time to time by the City Council.

(f) The completeness of an application shall be determined within six (6) business hours by the Police Chief. The Police Chief or his/her designee must be available during normal working hours Monday through Friday to accept adult-oriented business performer applications. If the Police Chief determines that the application is incomplete, the Police Chief shall immediately inform the applicant of such fact and the reasons therefor, including any additional information necessary to render the application complete. Upon receipt of a completed adult-oriented business performer application and payment of the permit fee specified in Subsection e. above, the Police Chief shall immediately issue a temporary permit which shall expire of its own accord ten (10) business days from the date of issuance and shall only be extended as provided in Section 5-9.303(b).

(g) This temporary adult-oriented business performer permit shall authorize a performer to commence performance at an adult-oriented business establishment that possesses a valid adult-oriented business permit authorized to provide live entertainment.

(h) 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-oriented business performer permit.

(Ord. 3778-C.S, § 4, effective 6-6-24)

(a) Upon submission of a completed application, payment of permit fees, and issuance of a temporary adult-oriented business performer permit, the Police Chief shall immediately stamp the application "Received" and in conjunction with City staff, including members of the Police Department, shall promptly investigate the information contained in the application to determine whether the permit applicant should be issued an adult-oriented business performer permit.

(b) Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The Police Chief's decision to issue or deny the adult-oriented business performer permit shall be made within ten (10) business days from the date the temporary permit was issued and in no case shall the decision to issue or deny the permit application be made after the expiration of the temporary permit. In the event the Police Chief is unable to complete the investigation within ten (10) business days, he/she shall promptly notify the permit applicant and extend the temporary permit for up to ten (10) additional business days. In no case shall the investigation exceed twenty (20) days, nor shall the decision to grant or deny the permit application be made after the expiration of the temporary permit.

(c) The Police Chief shall render a written decision to issue or deny the permit within the foregoing ten-day time period set forth above. Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten-day period or twenty-day period if extended pursuant to Subsection (b) above, and sent to the address provided by the applicant in the application.

(d) The Police Chief shall notify the applicant as follows:

(1) The Police Chief shall write or stamp "Issued" or "Denied" on the application and date and sign such notation.

(2) If the application is denied, the Police Chief shall attach to the application a statement of the reasons for the denial. Such notice shall also provide that the permit applicant may appeal the denial to the City Manager. The City Manager or a designated hearing officer shall conduct a hearing as described in Section 5-9.304.

(3) If the application is issued, the Police Chief shall attach to the application an adult-oriented business performer permit.

(4) The application, as acted upon, and the permit, if any, shall be placed in the United States mail, first class postage prepaid, or hand delivered, addressed to the permit applicant at the residence address stated in the application in accordance with the time frames established herein.

(e) The Police Chief shall issue the permit unless the application is denied based on one (1) of the grounds set forth in Subsection (f) of this section.

(f) The Police Chief shall deny the application based on any of the following grounds:

(1) The permit applicant has made false, misleading, or fraudulent statements of material fact in the application for an adult-oriented business performer permit.

(2) The permit applicant is under eighteen (18) years of age.

(3) The adult-oriented business performer permit is to be used for performing in a business prohibited by laws of the State or City or a business that does not have a valid adult-oriented business regulatory permit.

(4) The permit applicant, 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 (2) 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 (5) 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 felony; or (c) less than five (5) 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 (2) or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four-month period.

(g) Failure of the Police Chief to render a decision on the permit within the time frames established by this section shall be deemed to constitute an approval.

(h) Each adult-oriented business performer permit, other than the temporary permit described in Section 5-9.302(f), shall expire one (1) year from the date of issuance and may be renewed only by filing with the Police Chief a written request for renewal, accompanied by the annual permit fee and a copy of the permit to be renewed. If said application conforms to the previously approved application and there has been no change with respect to the permit holder being convicted of any crime classified by this or any other state as a sex related offense, the Police Chief or his/her designee shall renew the permit for one (1) year. Any plea to or conviction of a sex related offense requires the renewal application to be set for hearing before the Police Chief in accordance with the provisions of this section. The request for renewal shall be made at least thirty (30) days before the expiration date of the permit. Applications for renewal shall be acted upon as provided herein for action upon applications for permit. The Police Chief's denial of a renewal application is subject to the hearing provisions of Section 5-9.304.

(Ord. 3778-C.S, § 4, effective 6-6-24)

(a) On determining that grounds for denial of a permit, permit revocation or suspension exist, the Police Chief or his/her designee shall furnish written notice of the proposed action to the applicant/permit holder. Such notice shall set forth the time and place of a hearing before the City Manager or a designated hearing officer and the ground or grounds upon which the hearing is based, the pertinent Modesto Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant/permit holder, or shall be delivered to the permit holder personally, at least ten (10) days prior to the hearing date.

(b) On determining that grounds for denial of a permit exist, the Police Chief shall furnish written notice of the proposed action to the applicant/permit holder. The decision of the Police Chief shall be appealable to the City Manager by filing a written request for a hearing with the City Clerk within fifteen (15) days following the day of mailing of the Police Chief's decision and paying the fee for appeals provided under this Code. All such appeals shall be filed with the City Clerk and shall be public records. The City Manager shall issue a notice which shall set forth the time and place of a hearing before the City Manager or a designated hearing officer which is within thirty (30) days from the date the appeal was filed and the ground or grounds upon which the hearing is based, the pertinent Modesto Municipal Code sections, and a brief statement of the factual matters in support thereof. The notice shall be mailed, postage prepaid, addressed to the last known address of the applicant/permit holder, or shall be delivered to the permit holder personally, at least ten (10) days prior to the hearing date.

(c) The applicant shall have the right to offer testimonial, documentary, and tangible evidence bearing upon the issues and may be represented by counsel. The City Manager or designated hearing officer shall not be bound by the formal rules of evidence. 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 permittee. Extensions of time or continuances sought by a permittee/appellant shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on permit suspensions or revocations.

(d) A permit may be revoked, based on any of the following causes arising from the acts or omissions of the permit holder:

(1) The permittee has made any false, misleading, or fraudulent statement of material fact in the application for a performer license.

(2) The permittee 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 (2) 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 (5) 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 felony; or (c) less than five (5) 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 (2) or more misdemeanors or combination of misdemeanor offenses occurring within any twenty-four-month period.

(3) Failure to comply with the operating standards of Chapter 9, Article 2 or the requirements of this chapter.

(e) After holding the hearing in accordance with the provisions of this section, if the City Manager or designated hearing officer finds and determines that there are grounds for revocation or suspension, the City Manager or designated hearing officer shall revoke or suspend the permit. After holding the hearing in accordance with the provisions of this section on the denial of a permit, the City Manager or designated hearing officer shall decide to sustain the decision, modify the decision or order the decision stricken and issue such order as the City Manager or designated hearing officer finds is supported by the entire record. The City Manager or designated hearing officer shall render a written decision that shall be hand delivered or overnight mailed to the applicant/permit holder within four (4) working days of the hearing. The City Manager or designated hearing officer's failure to render such a decision within this time frame shall constitute an approval or reinstatement of the permit.

(f) In the event a permit is revoked pursuant to this section, another adult-oriented business performer permit shall not be granted to the permittee within twelve (12) months after the date of such revocation.

(g) The decision of the City Manager or designated hearing officer shall be final.

(h) The time for a court challenge to a decision of the City Manager or designated hearing officer is governed by California Code of Civil Procedure § 1094.8.

Notice of the City Manager's or designated hearing officer's decision and his/her findings shall include citation to California Code of Civil Procedure § 1094.8.

(i) Any applicant or permit holder whose permit has been denied, suspended, or revoked, pursuant to this Section shall be afforded prompt judicial review of that decision as provided by California Code of Civil Procedure § 1094.8.

(Ord. 3778-C.S, § 4, effective 6-6-24)

The Police Chief shall provide each adult-oriented business performer required to have a permit pursuant to this chapter with an identification card containing the name, address, photograph, and permit number of such performer. Every performer shall have such card available for inspection at all times during which he or she is on the premises of the adult-oriented business at which he or she performs.

(Ord. 3778-C.S, § 4, effective 6-6-24)

No adult-oriented business performer permit may be sold, transferred, or assigned by any permittee or by operation of law, to any other person, group, partnership, corporation, or any other entity. Any such sale, transfer, or assignment, or attempted sale, transfer, or assignment shall be deemed to constitute a voluntary surrender of the adult-oriented business performer permit, and the permit thereafter shall be null and void.

(Ord. 3778-C.S, § 4, effective 6-6-24)

(a) Any permittee violating or causing the violation of any of these provisions regulating adult-oriented business performer permits shall be subject to permit revocation/suspension pursuant to Section 5-9.304 above, a fine of not more than one thousand dollars ($1,000.00) pursuant to California Government Code §§ 36900 and 36901, and any and all other civil remedies. All remedies provided herein shall be cumulative and not exclusive. Any violation of these provisions shall constitute a separate violation for each and every day during which such violation is committed or continued.

(b) In addition to the remedies set forth in Subsection (a), above, any violation of any of these provisions regulating adult-oriented business performer permits is hereby declared to constitute a public nuisance and may be abated or enjoined.

(c) The restrictions imposed pursuant to this chapter are part of a regulatory licensing process, and do not constitute a criminal offense. Notwithstanding any other provision of the Modesto Municipal Code, the City does not impose a criminal penalty for violations of the provisions of this chapter related to sexual conduct or activities.

(Ord. 3778-C.S, § 4, effective 6-6-24)

The provisions of this chapter regulating adult-oriented business performer permits are not intended to be exclusive, and compliance therewith shall not excuse non-compliance with any other regulations pertaining to the licensing provisions as adopted by the City Council of Modesto.

(Ord. 3778-C.S, § 4, effective 6-6-24)