Modesto Municipal Code Art. 4 Adult-Oriented Business Non-Performer Permit

It is the purpose and intent of this chapter to require certain background checks on non-performers who work in adult-oriented businesses during regular business hours to promote the health, safety, and general welfare of the City. The goals of these non-performer employee provisions are (1) to protect minors by requiring that all non-performers regularly employed be over the age of eighteen (18) years; (2) to assure the correct identification of persons working 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 employment of non-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 adult-oriented business employees 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, § 5, effective 6-6-24)

(a) No individual who works as a non-performer in an adult-oriented business shall be employed, hired, engaged, or otherwise retained in an adult-oriented business without first submitting to a background check as provided below.

(b) Individuals who wish to work as non-performers in an adult-oriented business 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 employee applicant's legal name and all used aliases.

(2) Date of birth.

(3) Driver's license or identification number and state of issuance or other state identification which confirms the name of the applicant.

(4) The permit applicant's fingerprints on a Livescan form provided by the Modesto Police Department. Any fees for fingerprints shall be paid by the applicant. Fingerprints shall be taken within one (1) month of the date of application.

(5) Whether the non-performer employee applicant has pled guilty or pled 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. Any applicant who admits of a recent prior sex related offense as specified above shall be denied employment in an adult-oriented business during the applicable time period for disqualification called out herein.

(c) The information provided above in Subsection (b) of this section which is personal, private, confidential, or the disclosure of which could expose the non-performer employee to the risk of harm will not be disclosed under the California Public Records Act. Such information includes, but is not limited to, the applicant's mailing address, date of birth, age, driver's license number, and social security number. The City Council in adopting the application 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 and/or security interests are protected. The City Clerk shall cause the above-mentioned information to be redacted from any copy of a completed application form made available to any member of the public.

(d) The Police Chief or his/her designee must be available during normal working hours Monday through Friday to accept adult-oriented business non-performer employee applications. The Police Chief or his/her designee shall determine if an application is complete within five (5) business days. If the Police Chief determines that the application is incomplete, the Police Chief shall immediately inform the applicant of such fact and the reasons therefore, including any additional information necessary to render the application complete. Upon receipt of a completed adult-oriented business non-performer employee application in which the applicant denies any recent conviction of a sexual offense as specified in Section 5-9.402(b)(4) above, the Police Chief or his/her designee shall permit temporary employment of such applicant in an adult-oriented business that possesses a valid adult-oriented business permit.

(Ord. 3778-C.S, § 5, effective 6-6-24)

(a) Upon submission of a completed non-performer work application, by an individual who wishes to work in an adult-oriented business during regular business hours, the Police Chief or his/her designee 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 non-performer employee applicant may be permitted to work in an adult-oriented business pursuant to the disqualifying terms of Section 5-9.402 above.

(b) Investigation shall not be grounds for the City to unilaterally delay in reviewing a completed application. The Police Chief's determination of any violation of Section 5-9.402 shall be made within ten (10) business days from the date the non-performer employment application is filed with the Police Chief. In the event the Police Chief is unable to complete the investigation within ten (10) business days, he/she shall promptly notify the non-performer employment applicant. In no case shall the investigation exceed thirty (30) days.

(c) The Police Chief shall render a written decision to authorize or preclude a non-performer employee's employment in a validly permitted adult-oriented business during regular business hours within the foregoing ten (10) day time period set forth in Subsection (b), above. Said decision shall be mailed first class postage prepaid or hand delivered to the applicant, within the foregoing ten (10) day period or thirty (30) day period if extended, at the address provided by the applicant in the application. Notice of such decision shall also be mailed first class postage prepaid or hand delivered to the owner or management of any adult-oriented business a non-performer employee has applied to for employment within the time frame specified above for notification to the applicant.

(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 for work in an adult-oriented business during regular business hours 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 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 5-9.404.

(e) The Police Chief shall issue the application for non-performer work in an adult-oriented business 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 of a non-performer to work in an adult-oriented business based on any of the following grounds:

(1) The non-performer work applicant has made a false, misleading, or fraudulent statement of material fact in the application for work in a validly permitted adult-oriented business during regular business hours.

(2) The non-performer work applicant is under eighteen (18) years of age.

(3) The non-performer seeks work in a business prohibited by laws of the state or city or in a business that does not have a valid adult-oriented business permit.

(4) The non-performer work applicant has pled guilty, or pled 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 or his/her designee to render a decision on the application of a non-performer for work in an adult-oriented business within the time frames established by this section shall be deemed to constitute an approval of the non-performer work application.

(h) Each non-performer work applicant must annually renew his/her work application, with the Police Chief or his/her designee by a written request for work renewal. If said application conforms to the previously approved application and there has been no change with respect to the applicant having been 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 applicant's availability for work in an adult-oriented business during regular business hours 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 an initial application for non-performer work in an adult-oriented business during regular business hours. The Police Chief's denial of a renewal application is subject to the hearing provisions of Section 5-9.404.

(Ord. 3778-C.S, § 5, effective 6-6-24)

(a) On determining that grounds exist to deny work to a non-performer in an adult-oriented business during regular business hours, the Police Chief or his/her designee shall furnish written notice of the proposed action to the applicant. 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, or shall be delivered to the permit holder personally, at least ten (10) days prior to the hearing date.

(b) 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 an applicant/appellant shall not be considered delay on the part of the City or constitute failure by the City to provide for prompt decisions on denial of an employment application of a non-performer employee.

(c) The application/request of a non-performer to work in an adult-oriented business may be revoked, based on any of the following causes arising from the acts or omissions of the applicant:

(1) The applicant has made any false, misleading, or fraudulent statement of material fact in the application for work as a non-performer in an adult-oriented business during regular business hours.

(2) The applicant has pled guilty, pled 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.

(d) 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 to deny a non-performer work in an adult-oriented business during regular business hours, the City Manager or designated hearing officer shall deny the applicant work in an adult-oriented business establishment. After holding the hearing in accordance with the provisions of this section on renewal of a work application, 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 and any adult-oriented business where the applicant is working 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 approved renewal of the applicant's work during regular business hours in a validly permitted adult-oriented business.

(e) If the continuing work of a non-performer is denied pursuant to this section, the applicant may reapply for work with an adult-oriented business twelve (12) months after the date of such denial.

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

(Ord. 3778-C.S, § 5, effective 6-6-24)

Any violation of any of these provisions regulating adult-oriented business non-performer work applications is hereby declared to constitute a public nuisance and may be abated or enjoined.

(Ord. 3778-C.S, § 5, effective 6-6-24)

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

(Ord. 3778-C.S, § 5, effective 6-6-24)